Leslie v. Leslie

• Decision Date: 27 August 1892
• Citation: 24 A. 1029,50 N.J.E. 155
• Parties: LESLIE v. LESLIE.
• Court: New Jersey Court of Chancery

24 A. 1029

50 N.J.E. 155

LESLIE

v. LESLIE.

Court of Chancery of New Jersey.

Aug. 27, 1892.

(Syllabus by the Court.)

Bill by Edward Leslie against John S. Leslie to set aside an award of arbitrators. On motion to strike out parts of the answer. Motion granted in part.

Robert 1. Hopper and Theodore Runyon, for the motion.

John W. Griggs, opposed.

VAN FLEET, V. C. The complainant applies, on notice, under paragraph 224 of the rules, to strike out several parts of the defendant's answer. By force of the rule just mentioned, such an application, when the pleading put on trial is an answer, takes the place of exceptions, and the question whether the application shall be granted or not must, I suppose, be decided by the application of the same rules which would be applied in deciding whether exceptions to an answer are well taken or not. Though the notice under which this application is made arraigns those parts of the answer which it is sought to have excluded as impertinent, evasive, and insufficient, and as constituting no ground of defense, the only question which the motion presents, which in my judgment really affects the rights of the parties, or concerns the successful administration of justice, is whether the parts sought to be excluded are impertinent or not. If they are clearly impertinent, they must be expelled; if not, they must be allowed to stand. While there are many different definitions of impertinence, they all seem to agree in this: that any matter alleged in a pleading, to be entitled to stand against objection, must in some way appear to be of use in deciding the questions in dispute in the particular cause; otherwise, it is useless, and serves but to cumber the record, and hence should be expelled as worthless. In Woods v. Morrell, 1 Johns. Ch. 103, 106, Chancellor Kent said: "Facts not material to the decision are impertinent. * * * Perhaps the best test by which to ascertain whether the matter be impertinent is to try whether the subject of the allegation could be put in issue, and would be matter proper to be given in evidence between the parties." While Chancellor Zabriskie, in Railroad Co. v. Stewart, 19 N.J. Eq. 343, 345, said: "All matters not material to the suit, or, if material, which are not in issue, or which, if both material and in issue, are set forth with great and unnecessary prolixity, constitute impertinence." And Chancellor Walworth, in Van Rensselaer v. Brice, 4 Paige, 174, 177, in defining what an answer might properly allege, said that any matter which "can have any influence whatever in the decision of the suit, either as to the subject-matter of the controversy, the particular relief to be given, or as to costs, is not impertinent." Vice Chancellor McCoun had previously, in Desplaces v. Goris, 1 Edw. Ch. 350, 352, stated the rule in substantially the same way. And Chancellor Walworth, in the subsequent case of Hawley v. Wolverton, 5 Paige, 522, 523 in stating what matters might properly be alleged in a bill, said: "The complainant may therefore state any matter of evidence in the bill, or any collateral fact, the admission of which by the defendant may be material in establishing the general allegations of the bill, as a pleading, or in ascertaining or determining the nature and extent or the kind of relief to which the complainant may be entitled, consistently with the case made by the bill, or which may legally influence the court in determining the question of costs; and where any allegation or statement contained in the bill may thus affect the decision of the cause, if admitted by the defendant or established by proof, it is relevant, and cannot be excepted to as impertinent." Though the doctrine here laid down was applied to a bill, still I think it is obvious that in its essence it is just as applicable to an answer as to a bill. The rules regulating the statement of a defense must, in order to enable the court to get at all the facts of the case and to discover the whole truth, be quite as liberal as those regulating the statement of his case by a complainant. The rule enforced by Chancellor Walworth in Hawley v. Wolverton was quoted with approbation by Mr. Justice Van Syckel in pronouncing the opinion of the court of errors and appeals in Dodd v. Wilkinson, 42 N. J. Eq. 647, 649, 9 Atl. Rep. 685, and who, in addition, in describing the degree of caution which should be observed in deciding such applications as the one now under consideration, said: "The greatest care must be taken that nothing shall be stricken out before the whole case is before the court, in the testimony, which may, in any view of the controversy, become pertinent." This review of the authorities shows, I think, that the rule which should be applied in deciding the questions raised by the present application is this: that all substantial doubts, whether the matters objected to are pertinent or not, are to be resolved in favor of their pertinency, and that nothing should be expunged from the answer which the defendant has a right to prove, and which, if proved, can have any influence on the judgment of the court, either in deciding whether or not the complainant is entitled to any relief whatever, or the nature, character, or extent of the relief to which he may be entitled, even down to the question whether he shall have relief with or without costs.

To decide whether those parts of the defendant's answer, which are the subject of the complainant's objections, are pertinent or not, it is indispensable that we should know the object of the complainant's suit, and also the grounds, disclosed by the bill, upon which he rests his right to relief. The suit is brought to set aside an award made by two arbitrators. The award purports to have been made pursuant to an arbitration agreement entered into by the parties under seal. They were owners of all of the capital stock of the Leslie Bros. Manufacturing Company, a corporation organized under the laws of this state and doing business in the city of Paterson. Each held an equal number of shares. While they were thus equal in power, disputes arose between them, respecting the management of the affairs of the corporation, which ultimately became so violent as to seriously endanger the welfare of the corporation. They then determined to effect a separation of their corporate interests by one making a sale of his stock to the other, but they could not agree as to which should sell and which should buy. They both wanted to buy, and neither to sell. To extricate themselves from this predicament, they agreed to submit the question as to which should buy and which should sell to be settled by arbitration, and thereupon appointed two arbitrators, and gave them power to decide which one should sell his stock to the other; also, to fix the terms of the sale, and to direct how and when the stock of the one that they decided should sell should be paid for by the one that they decided should buy. These were the principal matters that the parties agreed should be submitted to the award and determination of the arbitrators. The arbitration agreement was signed by the parties on the 20th day of April, 1891; and three days afterwards, (April 23d,) the arbitrators made their a ward. They decided that the complainant should sell all his stock, "and any and all his rights in connection with said company," to the defendant, and that the defendant should, as part of the price of the stock, pay to the complainant $23,000. Eleven thousand dollars of this sum they directed to be paid, in the language of the award, "in the following manner: The sum of $8,000 in cash within three days after the making of...