Howell v. Stone

• Decision Date: 01 March 1909
• Citation: 75 N.J.E. 289,71 A. 914
• Parties: HOWELL v. STONE et al.
• Court: New Jersey Supreme Court

71 A. 914

75 N.J.E. 289

HOWELL

v. STONE et al.

Court of Errors and Appeals of New Jersey.

March 1, 1909.

(Syllabus by the Court.)

Appeal from Court of Chancery.

Bill by George Howell against Wesley Stone and Daniel E. Downey. Decree for complainant, and defendants appeal. Reversed.

George H. Large and Howard Carrow, for appellants.

Ralph V. Skinner, for respondent.

DILL, J. The decree of the Court of Chancery under review set aside a chattel mortgage in favor of a subsequent judgment of the plaintiff, holding that the statutory affidavit did not as a matter of law state "the consideration of said mortgage." P. L. 1902, p. 487. The learned Vice Chancellor said: "I wish to say in conclusion that I have reached this view of the case with great disinclination, for the reason that I found no aspect of fraud in the transaction. The making of the mortgage was an honest effort to secure an honest indebtedness, and it fails not because of any turpitude imputed to the transaction, but because of the noncompliance with a statutory requirement of considerable technicality." Prior to the decision of this court in American Soda Fountain Co. v. Stolzenbach (N. J.) 68 Atl. 1078, 16 L. R. A. (N. S.) 703, the statutory affidavit of consideration of a chattel mortgage had been construed by courts below as "a statutory requirement of considerable technicality," but in that case we squarely rejected that doctrine, holding that, in the absence of fraud, instruments so common in the course of commercial transactions by laymen as chattel mortgages should be sustained whenever there is an honest and substantial compliance with the statute. An affidavit of consideration is not to be tested by the rules of pleading nor treated as a technical requirement. On the contrary, it should be the aim of courts, when the mortgage is bona fide, to preserve and not to destroy, and, as Sir Matthew Hale said, the court should be astute to find means to make such instruments effectual according to the honest intent of the parties. Roe v. Tranmarr, Willes, 682. Applying this rule to the facts before us, we think that the conclusion at which the learned Vice Chancellor below arrived hesitante was erroneous.

Briefly as to the facts, Dr. T. E. Gurtner and his wife, Selma R. Gurtner, were the owners of a farm in Hunterdon county. The doctor bought from Stone & Downey, the defendants in this action, a quantity of farm implements and other articles, including fertilizers, which were sent to...