Mantel v. Landau.
| Decision Date | 03 December 1943 |
| Docket Number | 149/301. |
| Citation | 34 A.2d 638 |
| Parties | MANTEL v. LANDAU. |
| Court | New Jersey Court of Chancery |
OPINION TEXT STARTS HERE
Bill by Jacob R. Mantel, assignee for benefit of creditors of Kentz Drug Stores, Inc., against Jacob Landau to set aside a chattel mortgage made by the corporation to defendant.
Bill dismissed.
The affidavit of the mortgagee annexed to a chattel mortgage, pursuant to R.S. 46:28-5, N.J.S.A., stated that the consideration was a sum ‘this day loaned’. Part of the sum was represented by a check of the mortgagee to the mortgagor which was put in escrow until the mortgagor should satisfy prior liens. This was done and the check was delivered to the mortgagor and was paid two weeks after the date of the mortgage. Held, that the affidavit was true in substance and a sufficient compliance with the statute.
Abraham M. Herman, of Orange, for complainant.
Joseph Kraemer, of Newark, for defendant.
BIGELOW, Vice Chancellor.
The bill is filed by the assignee for the benefit of creditors of Kentz Drug Stores, Inc., to set aside a chattel mortgage made by the corporation to the defendant Jacob Landau. The mortgage is attacked primarily of the ground that the affidavit of consideration annexed thereto does not truthfully state the consideration as required by R.S. 46:28-5, N.J.S.A.
In October, 1941, Kentz Drug Stores arranged to borrow from Landau the sum of $10,000 and to pay for the loan, besides interest at 6 per cent., a premium or bonus of $2,500. The debt was to be secured by a chattel mortgage in the sum of $12,500, which would be a first lien on the fixtures and stock in trade of the mortgagor. The papers were drawn and the parties with their respective attorneys met to close the transaction on October 27. There were outstanding three small liens which were to be paid off out of the proceeds of the loan. The borrower had not attanged, however, for the lienholders to be present in order to receive their money and to cancel their liens. Nevertheless, the mortgage was executed and delivered and Landau drew two checks to the order of the mortgagor, one for $8,000, and one for $2,000. The first of these he handed over to the mortgagor while the other, or smaller, check he deposited with his attorney, Mr. Kraemer, in escrow, for delivery to the borrower as soon as the old liens were cancelled of record. Proof of cancellation was presented to Mr. Kraemer and the $2,000 check was delivered by him to the mortgagor on or before November 12 and was duly paid.
Landau's affidavit of consideration annexed to the mortgage states: ‘That the true consideration of the said mortgage is the sum of $12,500 this day loaned by me to the said Kentz Drug Stores, Inc. * * * I have received as premium for the making of said loan, the sum of...
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...the parties so long as he receives deposit not as the attorney for one of them but as an agent or trustee for both parties. Mantel v. Landau, 134 N.J.Eq. 194, 33 Backes 194, 34 A.2d 638, aff'd., 135 N.J.Eq. 456, 34 Backes 456, 39 A.2d 88 (Ch.1943); see Kelly v. Chinich, 91 N.J.Eq. 97, 108 A......
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