Maihack v. Mehl

• Decision Date: 10 February 1948
• Docket Number: 158/363.
• Citation: 57 A.2d 44
• Parties: MAIHACK v. MEHL et al.
• Court: New Jersey Court of Chancery

57 A.2d 44

MAIHACK

v.MEHL et al.

158/363.

Court of Chancery of New Jersey.

Feb. 10, 1948.

Suit for an accounting by Ernest G. Maihack against Camill H. Mehl and others. On motion to strike bill of complaint.

Bill dismissed.

Syllabus by the Court.

1. A motion to strike a bill of complaint is the modern equivalent of a demurrer under the early practice and normally carries with it, for immediate purposes, an acknowledgment of the truth of all the material and adequately pleaded factual charges of the bill.

2. The characterizations and conclusions in a bill of complaint are not implicitly to be adopted.

3. The pleader's construction and acceptation of the legal nature of a document, a copy of which he has caused to be attached to and made a part of the bill, are not controlling. The document itself is thus exposed to examination and construction by the court.

4. In determining the sufficiency of a bill this court has inherent power to dismiss it where it is made evident by the schedule or exhibit accompanying the bill that the characterization, interpretation, and legal construction sought to be ascribed to the exhibited document by the allegations of the bill itself are patently unwarrantable.

5. Except in those cases in which there are mutual accounts or the transactions between a principal and agent are so involved and complicated that the remedy at law is inadequate to administer complete justice, or where an accounting is ancillary to the superior and principal purpose of the cause of action, the mere relation of an agent to his principal does not of itself entitle an agent to maintain a bill for an accounting against the principal.

6. A principal is possessed of the power to revoke the authority of his agent at any time except where the delegation of such power is expressly made irrevocable, or where it is coupled with an interest, or given for a valuable consideration or as part of a security, or in other such exceptional situations.

Walter R. Whitehurst, of Newark, for complainant.

Kenneth C. Hand, of Elizabeth (Samuel Koestler, of Elizabeth, of counsel), for defendants.

JAYNE, Vice Chancellor.

The factual circumstances revealed by the complainant's bill of complaint fail, say the defendants, to constitute a cause of action cognizable by this court. I do not regard it necessary to restate them at length.

An application made, as here, in pursuance of Rule 69, Rules of Court of Chancery, N.J.S.A., tit. 2, is the modern equivalent of a demurrer under the early practice and normally carries with it, for immediate purposes, an acknowledgment of the truth of all the material and adequately pleaded factual charges of the bill. Vineland v. Maretti, 93 N.J.Eq. 513, 518, 117 A. 483; Kuskin v. Guttman, 98 N.J.Eq. 617, 130 A. 829, affirmed 99 N.J.Eq. 887, 132 A. 922; Baum v. Canter, 104 N.J.Eq. 224, 144 A. 588; Christiansen v. Local 680, Milk Drivers, &c., 126 N.J.Eq. 508, 10 A.2d 168; State v. Foster Wheeler Corp., 133 N.J.Eq. 554, 33 A.2d 699; Goldberg's Corp. v. The Goldberg Realty, &c., Co., 134 N.J.Eq. 415, 36 A.2d 122.

However, the characterizations and conclusions contained in a bill of complaint are not implicitly to be adopted. For example, the pleader's construction and acceptation of the legal nature of a document, a copy of which he has caused to be attached to and made a part of the bill, are not controlling. The document itself is thus exposed to examination and construction by the court. Schuler v. Southern Iron & Steel Co., 77 N.J.Eq. 60, 75 A. 552; Dick v. McPherson, 72 N.J. Law 332, 62 A. 383.

Hence, the intentions of the parties, as here, are open to ascertainment by what they committed to writing. Philip A. Singer & Bro. v. A. Hollander & Son, 104 N.J.Eq. 352, 354, 145 A. 621. And so, in determining the sufficiency of a bill this court has inherent power to dismiss it where it is made evident by the schedule or exhibit accompanying the bill that the characterization, interpretation, and legal construction sought to be ascribed to the exhibited document by the allegations of the bill itself are patently unwarrantable. Strauss v. Rabe, 97 N.J.Eq. 208, 127 A. 188, affirmed 98 N.J.Eq. 700, 130 A. 920; Tansey v. Belleville Relief Association, 99 N.J.Eq. 894, 133 A. 423; Kahn v. Rockhill, 131 N.J.Eq. 279, 25 A.2d 4.

In summary, the present bill alleges that on July 24, 1946, the defendants, Camill H. Mehl, now seventy-eight years of age, and his daughter, Irmgard Elsbeth Mehl, now forty-eight, who has been totally blind for more than forty years, each engaged the services of the complainant to be rendered on their behalf in pursuance of written authorizations respectively executed by each, and of which the following is a sample:

‘Power of Attorney

‘Know All Men, that I Camill H. Mehl, residing at the Fellowship Deaconry Recreation Home, in the Township of Bernardsville, County of Somerset, State of New Jersey, do hereby constitute and appoint Ernest G. Maihack, of the City of Summit, residing at 5 West End Avenue, County of Union, and State of New Jersey as my true and lawful attorney for me, and in my name,

‘1. To enter upon and take possession of any lands, buildings, tenements, or other structures, or any part, or parts, thereof, that may belong to me, or to the possession whereof I may be entitled;

‘2. To ask, collect and receive any rents, profits, issues, or income, of any and all of such lands, buildings, tenements, or other structures, or of any part, or parts, thereof;

‘3. To make, execute, and deliver any deed, mortgage, or lease, whether with, or without, covenants, or other structures, or of any part or parts, thereof, and to manage any such lands, and to manage, repair, alter, rebuild, or reconstruct, any buildings, houses, or other structures, or any part, or parts, thereof, that may now or hereafter, be erected upon any such lands;

‘4. To demand, sue for, collect, recover and receive all goods, claims, debts, moneys interest and demands whatsoever now due, or that may here after be due, or belong to me (including the right to institute any action, suit, or legal proceeding, for the recovery of any land, buildings, tenements, or other structures, or any part, or parts, thereof, to the possession whereof I may be entitled), and to make, execute and deliver receipts, releases, or any discharges therefor, under seal or otherwise;

‘5. To make, execute, endorse, accept and deliver any and all bills of exchange, checks, drafts, notes and trade acceptances;

‘6. To pay all sums of money, at any time, or times, that may hereafter be owing by me upon any bill of exchange, check, draft, note, or trade acceptance, made, executed, endorsed, accepted and delivered by me, or for me, and in my name, by said attorney;

‘7. To sell any and all shares of stocks, bonds, or other securities now, or hereafter, belonging to me, that may be issued by any association, trust, or corporation whether private or public, and to make, execute, and deliver any assignment, or assignments, of any such shares of stocks, bonds, or other securities;

‘8. To defend, settle, adjust, compound, submit to arbitration and compromise all actions, suits, accounts, reckonings, claims and demands, whatsoever, that now are, or hereafter shall be, pending between me and any person, firm or corporation, in such manner and in all respects as my said attorney shall think fit;

‘9. To hire accountants, attorneys-at-law, clerks, workmen, and others, and to remove them, and appoint others in their place, and to pay and allow to the persons to be so employed such salaries, wages, or other remuneration, as my said attorney shall think fit;

‘10. To enter into, make, sign, execute and deliver, acknowledge, and perform any contract, agreement, writing, or thing that may, in the opinion of my said attorney, be necessary, or proper, to be entered into, made or signed, sealed, executed, delivered, acknowledged or performed;

‘11. To constitute and appoint, in his place and stead, and as his substitute, one attorney, or more, for me, with full power of revocation; and

‘12. Without, in any wise, limiting the foregoing, generally to do; execute and perform any other act, deed, matter, or thing, whatsoever, that ought to be done, executed and performed, or that, in the opinion of my said attorney, ought to be done, executed, or performed, in and about the premises, of every nature and kind, whatsoever, as fully and effectually as I could do, if personally present.

‘And I, the said Camill H. Mehl, do hereby ratify and confirm all whatsoever my said attorney, or his substitute, or substitutes, shall do, or cause to be done, in, or about the premises, by virtue of this power of attorney.

‘In Witness Whereof, I have hereunto set my hand and seal, in the Township of Bernardsville, County of Somerset, State of New Jersey, on this 24th day of July, 1946.

‘(Signed) Camill H. Mehl L.S.

‘In the Presence of:

‘Toni Radmer

‘Emil Speer’

The accounts, stocks, and other financial securities of the defendants were thereupon made accessible to the complainant, and he has since exercised the...