Gabriel v. Auf Der Heide-Aragona, Inc.

• Decision Date: 25 June 1951
• Docket Number: No. A--308,A--308
• Citation: 82 A.2d 644,14 N.J.Super. 558
• Parties: GABRIEL v. AUF DER HEIDEARAGONA, Inc.
• Court: New Jersey Superior Court — Appellate Division

Page 558

14 N.J.Super. 558

82 A.2d 644

GABRIEL v. AUF DER HEIDEARAGONA, Inc.

No. A--308.

Superior Court of New Jersey

Appellate Division.

Argued May 28, 1951.

Decided June 25, 1951.

Victor S. Kilkenny, West New York, argued the cause for appellant (Otis & Kilkenny, West New York, attorneys).

Edward A. Levy, Passaic, argued the cause for respondent (Corbin & Corbin, Passaic, attorneys; Ralph A. Corbin, Passaic, of counsel).

Before Judges McGEEHAN, JAYNE, and WM. J. BRENNAN, Jr.

The opinion of the court was delivered by

JAYNE, J.A.D.

On July 30, 1945, Stanley M. Aragona, the treasurer of Auf der Heide-Aragona, Inc., the defendant-appellant, signed and delivered to Newton G. Gabriel, the plaintiff-respondent, the memorandum of which the following is a copy:

'Telephone Union 3--0488--0489

'5510--12 Jackson St.,

'West New York, N.J.

Auf Der Heide-Aragona, Inc.

'Builders

'July 30, 1945

'Mr. Newton G. Gabriel,

'6701 Blvd East,

'West New York, N.J.

'Dear Sir:

'In consideration of your undertaking to lease the ground floor and balcony of the property located at 5510--12 Jackson Street, West New York, N.J., for a yearly rental of $2,000.00 per year, or any amount acceptable to us, with a deposit of six months rent payable at the signing of lease, the undersigned agrees to pay Newton G. Gabriel the sum of $800.00 as commission.

'It is understood that property will not be available for occupancy until four weeks after signing of lease.

'Your authority and rights herunder shall be sole and exclusive for the period of ten days from the date hereof.

'Signed:

'Auf Der Heide-Aragona, Inc.,

'Stanley M. Aragona

Treas.

'Accepted by:

'Newton G. Gabriel

'Newton G. Gabriel'

On the afternoon of that day the plaintiff procured a prospective tenant ready, able, and willing to lease the designated premises on certain terms which were satisfactory to Mr. Aragona. The defendant declined to demise the premises. The plaintiff successfully prosecuted the present action in which he obtained a judgment against the defendant for the stated commission with interest. This appeal ensued.

The predominant issue originated by the pleadings and confirmed at the pretrial conference related to the authority of the treasurer to obligate the defendant corporation in a transaction of the nature contemplated by the memorandum.

It was not evident that the treasurer acted in pursuance of any express authority conferred upon him by any action of the board of directors, nor was it manifest that the measure taken by the treasurer had received corporate ratification.

Accordingly the paramount question was whether the defendant had clothed the treasurer with implied or apparent authority in the circumstances in which it had conducted its general course of business.

Counsel for the appellant have casually and incidentally invited our attention to the failure of the learned trial judge definitely and specifically to submit that pivotal factual question to the jury. The asserted omission is manifestly true.

Moreover we note that at the conclusion of the charge to the jury and in response to the inquiry of the court concerning objections thereto, counsel for the defendant stated:

'In one part of your Honor's charge, you said that Mr. Gabriel was given a memorandum which authorized him to lease these premises. I object to that part of the charge, on the ground that there was no resolution authorizing the agent to lease these premises, the charter of the corporation did not authorize it, and no evidence was brought forth to show that Mr. Aragona was the duly authorized agent of the corporation.

'The Court: All right.'

Notwithstanding that allusion by counsel to the issue implicating the treasurer's authority, the able and experienced trial judge refrained from amplifying his instructions and directed the jury to retire.

Irrespective of the inquiry whether the failure of a judge to point out to the jury the material issues and declare the applicable law constitutes a ground for reversible error in the circumstances of a given case, it may be advantageous to recall the comments long ago expressed by an authoritative expositor of the common law and by our appellate courts relative to the appropriate and proper function of a trial judge at a jury trial.

Blackstone observed: 'When the evidence is gone through on both sides, the judge, in the presence of the parties, the counsel, and all others, sums up the whole to the jury; omitting all superfluous circumstances, observing wherein the main question and principle issue lies, stating what evidence has been given to support it, with such remarks as he thinks necessary for their direction, and giving them his opinion in matters of law arising upon that evidence.' 3 Bl.Com. 375.

In 1817 our Supreme Court stated: 'One of the most important duties of the court is to expound the law to the jury, so as to instruct and guide it. And this duty must in no way be evaded, when the case requires it.' Broadwell v. Nixon, 4 N.J.L. 362 (Reprint p. 420) (Sup.Ct.1817).

In 1864 our former Court of Errors and Appeals declared: 'It is one of the clearest and most important duties of a court to expound the law to the jury for its guidance and instruction. The faithful performance of this duty is absolutely essential to the value, if not to the very existence of the trial by jury.' Talmage v. Davenport, 31 N.J.L. 561 (E. & A.1864).

More recently in Rowland v. Wunderlick, 113 N.J.L. 223, 226, 174 A. 168, 169 (Sup.Ct.1934), it was remarked: 'It has, from time immemorial, been the practice of the judge, at the close of a trial, to give the jury his opinion in matters of law arising from the evidence (3 Bl.Com. 375), and this practice becomes a duty that should not be evaded when the case requires it.'

Further comment appears in Hoffman v. Trenton Times, 125 N.J.L. 450, 16 A.2d 814, 815 (E. & A.1940): 'Generally the office or purpose of instructions by the court is to inform the jury as to the law of the case applicable to the facts in such a manner that the jury may not be misled; in other words, to advise the jury as to what is the law applicable to a certain set of facts, if they find the existence of such facts from the evidence. 3 Blk. *375; 3 Chit.Gen.Prac. *913; 64 C.J. 511; 14 R.C.L. 725.'

'It is the duty of a court, in its relation to the jury, to protect parties from unjust verdicts by making plain to the jury the issues they are to try, and by instructing them in the rules of law by which the evidence is to be examined and applied. Pleasants v. Fant, 22 Wall. 116, 89 U.S. 116, 22 L.Ed. 780.' 53 Am.Jur. 412, sec. 510.

'A court has power to instruct the jury on all questions of law growing out of the facts of a cause being tried, without a request from either party, and it has been declared to be better practice for the court in all cases to give the jury a knowledge of the definitions and principles of the law applicable.' 53 Am.Jur. 412, sec. 510.

'The object of instructions being to serve as a guide to the jury in calling their attention to whatever is proper and necessary to be considered in the case, and just what it is the jury is to decide, it is the prerogative and the duty of the trial court to direct the jury's attention to all the material issues disclosed by the pleadings, and to charge them upon every point pertinent to the issues as raised by the pleadings and the evidence.' Reid's Branson Inst. Juries 6, sec. 4; see, also, Blashfield's Inst. Juries, 331, sec. 143.

The jury should not be left by the court 'without 'guide or compass'.' Archer v. Pennsylvania R. Co., 166 Pa.Super. 538, 72 A.2d 609, 612, (Super.Ct.1950).

To illustrate a bad example, we quote from a case the entire charge delivered to the jury: 'Ladies and Gentlemen of the jury, it is up to you to decide this case. Be guided by the evidence and nothing else. If you think that the plaintiff is entitled to damages, you should give them to him; if not, your verdict should be for the defendant. I will say nothing more.'

We conceive it to be at least the conventional function of the judge even in the absence of requests of counsel intelligibly to present to the jury the material and substantial issues of fact disclosed by the pretrial order, drawn into controversy by the conflicting, divergent, and contradictory evidence adduced at the trial and to be submitted to the jury for determination, together with instructions in the law adapted to the consideration of such issues. How otherwise may we be confident that the jury distinctly recognized any such issue and deliberately resolved it?

In the present case the jury, uninformed of the law, might naturally have supposed that a memorandum signed by a treasurer in the corporate name would be binding on the corporation. This apprehension attains increased probability by the observance in the transcript of a remark made by the judge in the presence of the jury during the progress of the trial, to wit: 'The law is simple and clear that any officer of a corporation may conduct corporate affairs, and a third party who deals with him assumes that he is acting for the corporation.'

We have expressed our conception of the service properly to be rendered by a trial judge detached from the consequences of his failure to perform that service.

We are aware that anent this subject our former Court of Errors and Appeals asserted that 'The omission to state any legal principle which may be pertinent or applicable to the case, Or the omission to give any charge whatever, when no charge is requested, affords in itself no ground for a new trial, much less for reversal upon a writ of error or appeal.' Leiferant v. Progressive Agency, 98 N.J.L. 526, 120 A. 26, 27, (E. & A.1923).

Theretofore our former court of last resort had said in Mead v. State, 53 N.J.L. 601, 23 A. 264, 265 (E. & A.1891): 'It is the duty of the court, when required, to declare the law upon any point fairly involved in the...