Leary v. Gledhill

• Decision Date: 26 November 1951
• Docket Number: No. A--33,A--33
• Citation: 8 N.J. 260,84 A.2d 725
• Parties: LEARY v. GLEDHILL.
• Court: New Jersey Supreme Court

Page 260

8 N.J. 260

84 A.2d 725

LEARY v. GLEDHILL.

No. A--33.

Supreme Court of New Jersey.

Argued Oct. 22, 1951.

Decided Nov. 26, 1951.

Charles L. Bertini, Wood Ridge, argued the cause for the appellant.

Charles H. Roemer, Paterson, appeared for the respondent.

The opinion of the court was delivered by

VANDERBILT, C.J.

From a judgment of the Law Division of the Superior Court entered on a jury verdict in favor of the plaintiff the defendant appealed to the Appellate Division of the Superior Court. We have certified the appeal on our own motion.

The plaintiff and the defendant were friends who had become acquainted while in the military service. They first met in 1943 and occasionally thereafter through 1945. They corresponded but did not meet again until Christmas, 1948, when the defendant visited the plaintiff in Germany where he was stationed. At that time the defendant was no longer in the military service but was in Europe attempting to sell tractors for the Franam Corporation. Prior to the defendant's trip to Europe he had corresponded with the plaintiff with reference to an investment in the Franam Corporation as one which would be very profitable. Their correspondence resulted in the plaintiff purchasing $1,000 worth of stock when the defendant went to see him in Germany, the defendant delivering to the plaintiff certificates of stock which he had brought with him to Europe in exchange for the plaintiff's check for $1,000.

In April, 1949, the plaintiff at the defendant's invitation visited him in Paris. The defendant had left the United States with $500 in his possession and after arriving in Europe had been in constant need of money to meet his expenses. In a conversation in a hotel in Paris the defendant told the plaintiff that he needed about $4,000 and that he could raise about $2,000 by selling his Cadillac car. In the plaintiff's presence the defendant made a telephone call to his wife in the United States and instructed her to sell the automobile. The defendant asked the plaintiff to help him, but did not mention anything about selling the plaintiff any shares of stock. The plaintiff said he would think it over for a few days and see what he could do. After returning to his base in Germany the plaintiff mailed the defendant a check payable to the defendant's order for $1,500 without indicating on the check or in the accompanying letter what the money was for. The defendant endorsed the check and converted it into traveller's checks. The parties did not see each other again until the day of the trial, although the plaintiff had made many attempts to see the defendant after they both had returned to the United States, seeking him at his home and calling him on the telephone at various times, but always without success.

The plaintiff instituted this suit against the defendant on two counts, the first for $1,000 and the second for $1,500, but at the outset of the trial the plaintiff moved for a voluntary dismissal of the first count and the pretrial order was amended accordingly. The issue as stated in the amended pretrial order was limited to whether the money given by the plaintiff to the defendant was a loan or an investment in a business venture. At the trial the plaintiff testified that the check for $1,500 was a personal loan to the defendant but this the defendant denied, contending that he had never borrowed any money from the plaintiff. At the end of the plaintiff's case and again at the end of the entire case the defendant moved for an involuntary dismissal on the ground that the plaintiff's proofs were insufficient, there being no promise to repay, no demand for repayment, and no pleading or proof of the law of France where the transaction occurred. These motions were denied, the trial court holding that while it would not take judicial notice of the law of France it would proceed, first, on the presumption that the law involving loans is the same there as in other civilized countries, and, secondly, on the ground that the issue with respect to the law of France had not been set forth in the pretrial order. When the case was submitted to the jury, the defendant objected to the charge on the ground that it did not instruct the jury to find as a fact what the law of France was. The jury returned a verdict in favor of the plaintiff in the sum of $1,500, and from the judgment entered thereon the defendant took this appeal. It is significant that the defendant never proved or even attempted to prove either the delivery of any stock to the plaintiff or a tender thereof. Neither did the defendant attempt to prove or even suggest that the law of France was such as to preclude recovery in the circumstances.

The defendant argues five points on this appeal, none of which has merit:

1. 'The motion to dismiss should have been granted where the complaint alleges an express contract of loan and there is a failure to prove a promise to repay.' A loan may be established by a contract implied in fact as well as by an express promise; the only difference between the two is the kind of evidence used to prove the undertaking. At the oral argument the defendant relied on Allen v. Bunting, 18 N.J.L. 299 (Sup.Ct. 1841) holding that a note or a check in the hands of the maker or drawer after payment at the bank, instead of being Prima facie evidence of so much money lent, is only Prima facie evidence that the maker or drawer was indebted to the payee at the time he gave the note or check and that it was given in satisfaction of that specific debt. It is difficult to see how this ruling as to the Prima facie effect of a cancelled check in the plaintiff's hands aids the defendant in view of the testimony given at the trial concerning defendant's need of $4,000 to pay his expenses, his instructions to his wife by trans-Atlantic telephone to sell his Cadillac car for $2,000, and his request to the defendant for a loan, followed by the plaintiff's mailing him a check for $1,500. The issue presented by the pretrial order as to whether or not the plaintiff had given the $1,500 to the defendant as a loan was properly presented to the jury which reached a conclusion supported by the evidence before it.

2. 'The trial court erred in failing to dismiss the complaint where the plaintiff failed to prove a demand for repayment of the money.' This defense comes with bad grace from a defendant who had so assiduously avoided the efforts of the plaintiff to communicate with him, and no authorities to support it are cited by the defendant in his brief nor did he come forward with any at the oral argument. In the circumstances here the starting of suit is all the demand the defendant is entitled to. We consider that the answer to the defendant's contention is well stated in section 264 of the Restatement of Contracts: 'Where a contractual promise to pay money is in terms performable on demand by the promisee, but the duty of performance is otherwise unconditional, and neither more specific words nor usage requires a different result, a right of action by the promisee is not conditional on a demand being made.'

3. 'The rules of law for a foreign country must be pleaded and proved as facts along with the other elements of a cause of action to enable a plaintiff to recover against the defendant.' A court will in general take judicial notice of and apply the law of its own jurisdiction without pleading or proof thereof, the judges being deemed to know the law or at least where it is to be found, 9 Wigmore on Evidence (3rd ed., 1940), 551. Under the common law of England as adopted in this country, however, the law of other countries, including sister states, would not be so noticed and applied by a court, but it was deemed an issue of fact to be pleaded and proved as other material facts had to be, Title Guarantee & Trust Co. v. Trenton Potteries Co., 56 N.J.Eq. 441, 444, 38 A. 422 (E. & A.1897); Coryell v. Buffalo Union Furnace Co., 88 N.J.L. 291, 294, 96 A. 55 (E. & A.1915); Fithian v. Pennsylvania Railroad Co., 91 N.J.L. 275, 279, 103 A. 193 (E. & A.1918); Giardini v. McAdoo, 93 N.J.L. 138, 141, 107 A. 437 (E. & A.1919); Robins v. Mack International Motor Truck Corp., 113 N.J.L. 377, 387, 174 A. 551 (E. & A.1934); Coral Gables, Inc., v. Kretschmer, 116 N.J.L. 580, 582, 184 A. 825 (E. & A.1936); Franzen v. Equitable Life Assur. Soc., 130 N.J.L. 457, 459, 33 A.2d 599 (Sup.Ct.1943); 9 Wigmore on Evidence (3rd ed., 1940), 554. This common law rule had two great disadvantages; it made every jury pass on questions of law quite beyond its competence and the decision of the jury as to the foreign law was unappealable at common law as were its findings on all questions of fact.

The courts, however, were reluctant to dismiss an action for a failure to plead and prove the applicable foreign law as they would have dismissed it for a failure to prove other material facts necessary to establish a cause of action or a defense. Accordingly the courts frequently indulged in one or another of several presumptions: that the common law prevails in the foreign jurisdiction; that the law of the foreign jurisdiction is the same as the law of the forum, be it common law or statute; or that certain fundamental principles of the law exist in all civilized countries. As a fourth alternative, instead of indulging in any presumption as to the law of the foreign jurisdiction, the courts would merely apply the law of the forum as the only law before the court, on the assumption that by failing to prove the foreign law the parties acquiesce in having their controversy determined by reference to the law of the forum, be it statutory or common law. By the application of these various presumptions the courts have in effect treated the common law rule that foreign law could not be noticed but must be pleaded and proved as if it were a matter of fact merely as a permissive...