Osborne v. O'Beilly

• Decision Date: 19 February 1887
• Citation: 9 A. 209,42 N.J.E. 467
• Parties: OSBORNE v. O'BEILLY, Ex'r, etc.
• Court: New Jersey Court of Chancery

9 A. 209

42 N.J.E. 467

OSBORNE

v. O'BEILLY, Ex'r, etc.

Court of Chancery of New Jersey.

February 19, 1887.

Bill for injunction and account. On final hearing on pleadings and proofs.

H. A. Drake, for complainant. P. L. Voorhees, for defendant.

RUNYON, Ch. The bill was filed against Patrick O'Beilly, (he has since died,) and the object was to stay proceedings in an attachment suit brought in Camden circuit court by O'Beilly against the complainant, and to get an account of certain transactions and dealings between the complainant and him. One of those transactions is in reference to a locomotive engine called the "Sea Gull," which the complainant says he purchased for O'Beilly, and at his request and with his money, and at the like request took the title thereto in his (the complainant's) name, and leased the engine to the Camden & Atlantic Railroad Company. The complainant alleges and insists that such leasing was in behalf and on account of O'Beilly; while, on the other hand, the defendant insists that O'Beilly leased the engine to the complainant, who in turn leased it to the railroad company. Another matter in reference to which the complainant claims an account is extra work, which he insists was done by him for O'Reilly, both under and outside of the complainant's contract with O'Reilly, hereinafter mentioned, for graduation, etc., of certain sections of the Lebanon Valley Railroad. In April, 1854, O'Reilly had the contract for the construction of about 40 miles of that road, and the complainant and one Charles Tarrant, under the firm name of Tarrant & Co., then entered into a subcontract with him for the construction by them of 13 sections, of one mile each. They entered upon the work, and in October following the partnership was dissolved by the withdrawal of Tarrant, whose interest under the contract passed to the complainant, who completed the work. The complainant insists that the terms of that contract were changed in respect to the price of excavating solid rock and hard clay; and he claims that consequently in the account he is entitled to a higher price therefor than that fixed by the contract. The work was partially suspended for several months from about the first of October, 1854, and during that period there was what is called a "strike" of the complainant's workmen, during which some of his property was destroyed. He claims that O'Reilly's estate is liable to him for the damages he so sustained, and he prays an account thereof accordingly. He also makes claim for damages which he sustained by that suspension of the work in the rise of wages and price of materials which he had to purchase, etc. Another matter is the purchase and sale of a tract of woodland in Pennsylvania, called in the case "Greenwood," and another is the purchase of a farm for George W. Bowen. The answer admits that there should be an account; but it makes counter-claims against the complainant, among which is a claim for the price of certain personal property sold and delivered by O'Reilly to the complainant, and a claim that a balance is due to the defendant on account of moneys of O'Reilly's which came to the complainant's hands as agent and superintendent for O'Reilly under the contract of the latter for the construction of the Camden & Atlantic Railroad.

As to the claim in connection with the locomotive engine Sea Gull. The complainant claims, as before stated, that the engine, which it is admitted was bought by O'Reilly to be used upon the road of the Camden & Atlantic Railroad Company, (the company was in embarrassed circumstances,) of which road the complainant was superintendent, and in which O'Reilly was interested, was leased by him in his own name, but as O'Reilly's agent, to the Camden & Atlantic Railroad Company. To recover arrears of rent he took legal proceedings, at some expense for counsel fees, etc. He received from the company, in settlement and composition, satisfaction for his expenditures, and took some of its preferred stock for the money due for the unpaid rent. He claims that he made the settlement with O'Reilly's consent, and by his authority; while the defendant, on the other hand, insists that O'Reilly let the engine to the complainant, and that the latter, and not the company, was responsible to him for the rent. As already stated, the complainant alleges that he bought the engine at O'Reilly's request, and by his direction and for him, and with his money, and, at O'Reilly's request, took the engine in his (the complainant's) name. The answer denies that the complainant bought the engine, or took title to it. But it states that he urged O'Reilly to buy it, and let it to the company, which O'Reilly refused to do, and that then the complainant requested O'Reilly to buy an engine for use upon the road, and let it to him, to which proposition O'Reilly acceded, and bought the engine accordingly, and let it to the complainant. In an account rendered to O'Reilly by the complainant of money placed in the complainant's hands for a special purpose, as stated in the bill, the complainant charges O'Reilly with $22.35 for expenses incurred in July, 1855, in furnishing the engine, and with expenses ($65.74) paid in September, 1857, consequent upon moving it, and he credits O'Reilly, under date of December 27, 1855, with $104 for "surplus of purchase money of Sea Gull engine in July, 1855." O'Reilly did not object to those charges, or to that credit; so that it seems clear that the complainant's statement that he bought the engine for O'Reilly, and with O'Reilly's money, is true. The complainant leased the engine to the company in his own name; but there is no evidence, except the statement in the answer, that O'Reilly ever leased or transferred the engine to him. There is evidence in O'Reilly's letters that the complainant's statements upon this head are truthful. His claim to an account is valid.

To consider the claim in reference to Greenwood. The bill states that in or about October, 1855, O'Reilly, who had purchased a tract of land of about 1,300 acres in Pennsylvania, called "Greenwood," said to the defendant that the timber upon the land would be of great advantage to him (O'Reilly) for furnishing railroad ties for the Lebanon Valley Railroad, for the construction of about 40 miles of which he had, as before stated, a contract; that the ties would in value be more than sufficient to pay the purchase money of the property; and that, in view of his numerous obligations for kindness to the complainant, he would let him have an interest of one-half in the tract if he would take charge of the property, and assist him in obtaining ties therefrom, and in sending them to the railroad. It further states that the complainant agreed to this, and accordingly rendered the service, and made expenditures contemplated by the agreement, but that O'Reilly did not convey the promised interest in the land to him, nor any interest whatever, but sold the property to another person. The answer denies that such was the agreement, and alleges that in fact the agreement was for a partnership between the complainant and O'Reilly; the former to pay half of the purchase money of the property, which he subsequently refused to do. What the agreement really was, does not appear. O'Reilly died in 1881. He filed his answer in 1864. The bill was filed in January, 1861. From the time of filing the answer to his death, a period of 17 years, no step was taken in the cause. O'Reilly was dead when the complainant gave his testimony in the suit. The complainant is therefore not competent to testify to any transaction with or statement by O'Reilly. P. L. 1880, p. 52; Lanning v. Lanning, 17 N. J. Eq. 228. There is no other direct evidence upon the subject. Nor does the evidence in the case support the claim of the answer that there was a copartnership. The complainant is entitled to compensation for his services and expenditures in the matter, and to an account accordingly.

The transaction in regard to the Bowen farm was as follows: In 1857, O'Reilly and the complainant proposed to assist Bowen in the purchase of the farm, by advancing him money to aid him in the payment of the purchase money, $4,800. The complainant paid $1,300 in cash, and he and O'Beilly indorsed Bowen's notes for $1,500. For the rest ($2,000) of the price Bowen gave a first mortgage to Bean, the vendor, upon the property. To secure the $2,800 to the complainant and O'Beilly, Bowen conveyed the property to them by deed dated December 8, 1856, and they executed and delivered to him a defeasance dated April 1, 1857, declaring that the conveyance was made to secure the payment of that money. Afterwards they reconveyed the farm to him, and he mortgaged it to the complainant alone, to secure the $2,800. The complainant paid the notes, and the property was sold. After applying the proceeds of the sale there remained a deficiency of $1,114.50. The complainant claims that there is due to him from O'Reilly's estate upon this Bowen matter over $1,773. The bill says nothing of this claim. The sale appears to have taken place in the spring of 1868. From that time to the death of O'Reilly, in January, 1881, was a period of about 13 years. It was not until the death of O'Reilly that this matter was introduced into the case, and then it was brought in, not by the pleadings, but by the evidence. Not to speak of the bar of the statute of limitations, it would be unjust to the estate of O'Reilly to require an account upon this claim under the circumstances. The complainant might have set it up by supplemental bill, but he did not see fit to do so. Common justice, no less than the demands of correct practice, required him to set up his claim in that way, and so notify the defendant that he intended to hold him liable thereon. He, having made no claim in any way in respect of that matter for more than six years (it was in fact more than thirteen) after the alleged liability...