Illingworth v. Rowe

• Decision Date: 06 February 1894
• Citation: 28 A. 456,52 N.J.E. 360
• Parties: ILLINGWORTH v. ROWE et al.
• Court: New Jersey Court of Chancery

28 A. 456

52 N.J.E. 360

ILLINGWORTH

v. ROWE et al.

Court of Chancery of New Jersey.

Feb. 6, 1894.

(Syllabus by the Court.)

Bill of interpleader by John Ulingworth against Alfred Rowe and the Newark Lumber Compauy. Heard on demurrer to bill. Demurrer overruled.

David A. Ryerson, for complainant.

Frederick F. Guild and Edward M. Colie, for respondents.

VAN FLEET, V. C. This is an interpleader suit. Two of the defendants have demurred to the bill for want of equity. As a bill of strict interpleader, I do not think the bill can be sustained; but, if it be considered as a bill in the nature of a bill of interpleader, then I think it must be held to exhibit a case which clearly entitles the complainant to relief,—but not relief of the kind now asked, but such relief as the court may, under a bill in the nature of a bill of interpleader, grant, upon the facts admitted by the demurrants. To state a case of strict interpleader, it is necessary for the complainant to show that conflicting claims are made against him for the same thing by two or more different persons; to aver that he has no interest in the subject-matter of their controversy, and also admit that the title to the thing in dispute is in some one of the conflicting claimants, but in which he is unable to decide. He cannot ask for affirmative relief against either of the hostile claimants, but must content himself with simply praying that they be required to cease from troubling him, and to settle their dispute, by some appropriate judicial proceeding, among themselves. But, as is said by Judge Story both in his commentaries on Equity Jurisprudence and Equity Pleadings, "There are many cases where a bill in the nature of a bill of interpleader will lie by a party in interest to ascertain and establish his own rights, where there are other conflicting rights among third persons." Among the instances which he gives, in which it is proper to have recourse to this remedy, is this: "If a mortgagor wishes to redeem the mortgaged estate, and there are conflicting claims between third persons as to their title to the mortgage money, he may bring them before the court to ascertain their rights, and to have a decree for a redemption, so that he may make a secure payment to the party entitled to the money." 2 Story, Eq. Jur. § 824; Story, Eq. Pl. § 297b. In such a case, if the complainant prevails, he gets affirmative relief,—a decree that on the payment of the mortgage debt the mortgage shall be surrendered to him for cancellation.

Briefly stated, the case made by the bill is this: The defendant Rowe made a contract to erect three houses for the complainant, for $2,550 for each; the contract price of each to be paid in three installments, as the work on each reached a specified stage in course of completion. Rowe agreed to furnish all the material and do all the work, and have the houses completed on or before February 1, 1893. The contract was filed. Rowe made a subcontract with one George Bopp for the erection of the houses. After one of the houses had been completed, and the contract price for that had been fully paid, and two installments of the contract price of the other two had also been paid, both Rowe and Bopp quit work on the remaining two, leaving them in an unfinished state. The complainant, then, after giving Rowe the notice required by the contract, procured material and workmen, and completed them himself. On July 13, 1893, the complainant and Rowe had an accounting to ascertain the balance remaining due under the contract, and agreed that such balance was $1,566.31. Of this sum the complainant paid Rowe $897.36, and retained $668.95. Prior to the accounting the Newark Lumber Company had given the complainant written notice that it had furnished to Bopp material of the value of $668.95, which had been used in the construction of his houses, and for which it had not been paid. A written memorandum of the accounting and settlement was made, and signed by the complainant and Rowe, in which it is stated that the $668.95 is retained by the complainant on account of an alleged claim of the Newark Lumber Company for materials furnished for the complainant's houses, of which the Newark Lumber Company had given the complainant notice, but which Rowe disputed. The memorandum then says: "The said John illingworth is to file immediately in the court of chancery of New Jersey a bill of interpleader, and pay the said sum of $668.95 into court; but the said Alfred Rowe does not consent or admit that the case is a proper one for a bill of interpleader, and reserves all rights of action, and all rights to plead, demur, or answer said bill of interpleader, which he would have had, had this settlement not been made." The bill further alleges that the Newark Lumber Company has not been paid for the material which it furnished to Bopp, and which was used in the construction of the complainant's houses, and also that it has not released any right which it acquired by furnishing the material, and also that it claims that the debt which was created by the use of its material in the construction of the complainant's houses may, by force of the statute, be made a lien on the complainant's buildings and land, and also that it threatens to file a lien claim for such debt against the complainant's buildings and land, and institute a suit to enforce its payment. This summary of the bill shows that the material facts admitted by the demurrants are—First, that the Newark Lumber Company furnished material which was used in the construction of the complainant's houses, and which has not been paid for; second, that whatever right the ...