Gennert v. Wuestner

• Decision Date: 12 April 1895
• Citation: 53 N.J.E. 302,31 A. 609
• Parties: GENNERT v. WUESTNER.
• Court: New Jersey Court of Chancery

31 A. 609

53 N.J.E. 302

GENNERT

v. WUESTNER.

Court of Chancery of New Jersey.

April 12, 1895.

(Syllabus by the Court.)

Bill by Gottlieb Gennert against Edmund Wuestner for an accounting. Decree for complainant.

J. A. Beecher, for complainant.

Carrick & Wortendyke, for defendant.

PITNEY, V. C. This is a bill for an account of—among other things—certain commissions on goods manufactured by the defendant, and by him sold to various parties, the right to which depends upon a written agreement entered into between the parties, and bearing date the 1st of April, 1890. There were other large transactions between the parties, in the way of goods sold and delivered by each to the other. As to these the dispute is wholly one of prices. In answer to the demand for commissions upon sales of the defendant's own goods, the defendant set up in his answer that on or about the 1st of January, 1891, after the agreement had been in practical operation between the parties for nine months, the defendant repudiated and rescinded it on the ground that the complainant had persistently broken it on his part, and that the complainant acquiesced in this rescission, and from thenceforth the agreement, except as to a lease embodied in it of certain lands, was treated by both parties as of no further binding force between them. There was a cross bill combined with the answer, and a reply by the complainant to the cross bill, which need not now be stated at length. At the hearing of the cause the defendant offered evidence tending to show that the agreement in question, although dated on the 1st day of April, which occurred on Tuesday, was in fact executed and delivered on the previous Sunday, and was therefore void. He stated as an excuse why this defense was not set up in his answer that he was not then aware that the agreement was thereby rendered unlawful. The evidence of execution on Sunday was excluded at that time because there was no allegation in the answer to support it, and the complainant had not come prepared to meet it, and I was not satisfied that it was proper to allow such an amendment, under the circumstances. Leave was granted to the parties to be heard upon the question of the propriety of the amendment, and briefs were submitted on that point, upon which I concluded that the amendment should be allowed, and I so announced to the respective counsel. In point of fact, it never was made, but the parties went to hearing on the question of the date of the execution and delivery of the agreement as if the amendment had been made, and testimony was taken on both sides upon that point.

The agreement was prepared in duplicate, from previous instructions therefor, by Mr. H. W. W., of the Jersey City bar, and was executed in his presence. He at the time lived with his father, in the immediate vicinity of the residences of the two parties. All agree that the actual execution of the duplicates took place in the father's house, both parties signing them at one time, and that they were then and there mutually delivered. The question is whether this occurred on Sunday, March 30th, or Tuesday, April 1st.

Mr. H. W. W. swears that he believes that it occurred on Sunday, March 30th, and he has a distinct recollection that it occurred about 11 o'clock a. m. He distinctly recollects that the parties called unexpectedly upon him while he was sitting reading the newspaper after a late breakfast,—a thing which he never did except upon Sunday mornings. Moreover, he finds in his diary and cash book several entries as follows: In the diary, an appointment for a meeting at his father's house with the complainant, Gennert, for Sunday, March 23, at 11 o'clock in the morning. At this time, according to the defendant's theory, the instructions for the agreement were given. Further, an entry in his cash book, under date of March 30th, of $10 for drawing the agreements, which sum he swears that he distinctly recollects was paid at the time the agreements were executed. Further, an appointment in his diary for March 31st, but entered before that date, as follows: "Draw lease 22 & 24 Jackson avenue to Edward Wuestner, $45, 5 years from." A further entry in his diary of an appointment for April 1st: "7:30, Gennert." A lease from Gennert to Wuestner, for five years, for 22 and 24 Jackson avenue, was in fact incorporated into the contract in question, but Mr. W. did prepare a separate lease of the premises upon the same terms, which was handed to complainant, but was never executed. Mr. W. was the first witness sworn, and then left the court, and was not recalled. After him, complainant and defendant and their several sons were sworn.

The defendant, Wuestner, corroborates Mr. W. He says that the verbal bargain between himself and Gennert was made some time previous to April 1st, and Mr. Gennert was to have the writings prepared; that some time during the week previous to Sunday, the 30th of March, Mr. Gennert told him to call at his house on Sunday morning, and go with him to Mr. W.'s house, and execute the papers; that he called at Gennert's house about 10 a. m. on Sunday, and that they went together to W.'s house, and found Mr. W., who produced the type-written agreements; that he (Wuestner) objected to one clause, which was thereupon stricken out, and they were then executed and delivered, and each party paid five dollars to Mr. W.; that Mr. W. remarked that, if Mr. Gennert desired to sell the premises covered by the lease before the expiration of the contract, he would wish to turn over to the purchaser the lease of the premises, and that the long contract in which the lease was incorporated would not be convenient for that purpose, and that he had better have a separate lease; and that it was agreed there should be a separate lease prepared and executed. Wuestner's two sons corroborate him. They were living at home, and they swear that they were informed by their father of his expectation of executing the contract on that Sunday; that their father left home a little before 10 o'clock in the morning to go to Mr. Gennert's for that purpose; that they remained in the house all the forenoon, and had dinner a little later than usual, because of its being Sunday; and that their father came in before dinner time, and produced his copy of the...