Nw. Mut. Life Ins. Co. v. Breautigam

• Decision Date: 24 February 1903
• Citation: 69 N.J.L. 89,54 A. 228
• Parties: NORTHWESTERN MUT. LIFE INS. CO. et al. v. BREAUTIGAM.
• Court: New Jersey Supreme Court

54 A. 228

69 N.J.L. 89

NORTHWESTERN MUT. LIFE INS. CO. et al.

v. BREAUTIGAM.

Supreme Court of New Jersey.

Feb. 24, 1903.

(Syllabus by the Court.)

Action by the Northwestern Mutual Life insurance Company and others against Frederick C. Breautigam. Demurrer and declaration overruled.

Argued November term, 1902, before GUMMERE, C. J., and VAN SYCKEL, FORT, and PITNEY, JJ.

Frank E. Bradner, for plaintiffs.

Edward H. Murphy, for defendant.

PITNEY, J. In an action of tort, the declaration recites that one Stout and others had applied to the Chancellor of this state for a writ of injunction to restrain the plaintiffs from prosecuting an action at law to recover the amount due upon a certain promissory note made by said Stout and others and held by the plaintiffs; that said Stout and others consented that, if an injunction were granted, they would execute and deliver to the plaintiffs a bond, with good sureties, conditioned that they should pay to the plaintiffs any amount of money that might thereafter be found by the Court of Chancery to be due to the plaintiffs upon said promissory note, with the costs of the action at law and of the suit in chancery; and that the plaintiffs agreed to accept such bond, and consented to the grant of injunction, and thereupon the said Stout and others obtained from the Chancellor an order for an injunction, restraining the plaintiffs from prosecuting the said action at law upon the said promissory note, upon condition that the complainants should first execute and deliver to the plaintiffs a bond in the penal sum of $4,000, containing a condition in the form above mentioned, to be executed by two sureties whose sufficiency should be approved by one of the special masters of the Court of Chancery, and which bond should be first accepted by the plaintiffs; and the declaration avers that the defendant, in order to induce the plaintiffs to accept a bond executed by him as one of the sureties, falsely and fraudulently represented to the plaintiffs that he was worth above the sum of $4,000 in real estate in the state of New Jersey after all his debts and liabilities were paid; that the plaintiffs, relying upon this representation of the defendant, assented to him as a surety upon the bond, and accepted a bond with the defendant as a surety thereon; that in truth and in fact the defendant was wholly insolvent and unable to pay his debts, and was not worth the sum of $4,000, in real estate in the state of New Jersey, above...