Savage v. Edgar

• Decision Date: 17 January 1916
• Docket Number: No. 40/210.,40/210.
• Parties: SAVAGE et al. v. EDGAR.
• Court: New Jersey Court of Chancery

97 A. 164

85 N.J.Eq. 420

SAVAGE et al.

v. EDGAR.

No. 40/210.

Court of Chancery of New Jersey.

Jan. 17, 1916.

Bill between Edward S. Savage and another and John Blanchard Edgar. On motion for preliminary injunction and motion to strike out bill. Findings for complainants.

Clark McK. Whittemore, of Elizabeth, and Robert H. McCarter, of Newark, for complainants. Carrick & Wortendyke, of Jersey City, for defendant.

BACKES, V. C. Upon the argument of the order to show cause why the defendant should not be restrained from prosecuting his action at law until a final determination of this suit, the defendant raised but three questions in opposition: (1) That the subject-matter has been litigated and determined in the Supreme Court; (2) this court will not under the circumstances assume jurisdiction of the controversy; and (3) that the bill of complaint being met by the defendant's affidavit, no preliminary injunction can go. The facts disclosed by the affidavits are these:

Mr. Edgar had an action pending in the Supreme Court to recover $50,000 from Mr. Savage and his wife, which they agreed to adjust, and which agreement they reduced to writing, as follows:

"Rahway, Oct 3, 1914.

"Whereas differences have arisen between J. Blanchard Edgar and Edward S. Savage, and suit is now pending in the Supreme Court of the state of New Jersey wherein said Edgar claims the sum of fifty thousand dollars and interest, it is the desire and purpose of both parties to settle and adjust all matters of difference and accounts between them. It is agreed that said Savage shall transfer to Edgar 250 shares of the common stock of the Trembly Point Corporation and shall in addition thereto pay in cash two thousand dollars and give his note payable to said Edgar for two thousand dollars thirty days hereafter, in full settlement of all claims and demands whatsoever. The said Edgar in consideration thereof agrees to discontinue said suit at once and pay all costs including his attorney's fees and counsel fees. The receipt of two thousand dollars and the note above mentioned is hereby acknowledged. The stock to be delivered at 10 Wall on Oct. 5th, at 12 m. It being understood that said Savage his heirs and assigns shall have the option to purchase said two hundred and fifty shares of Trembly Point Corporation stock at any time within six months from this day by paying the par value therefor, but no obligation is created by this agreement to repurchase said stock.

"[Signed] J. Blanchard Edgar."

On the day of adjustment Savage paid to Edgar $2,000 by check, gave him his note for a like amount, payable in 30 days, and the following Monday morning the two met by appointment in Savage's New York office to pass the shares of stock. Accompanied by Edgar, Savage took a certificate of 250 shares of the common stock of the Trembly Point Corporation to the company's transfer office, and indorsed in blank, delivered it to the secretary of the company, with directions to transfer it to Edgar, and upon request of Edgar directed it to be transferred to Harriet B. Edgar, his wife. Edgar promised to call for the new certificate the next day, which he failed to do, and set up in justification that his agreement was for $5,000 in cash; that the capital stock was represented to be worth par, for the assurance of which he reserved to himself the right to inspect certain appraisements of the property of the company; that he took the check under a mistaken notion that it was for $3,000; and that at the time of the intended transfer Savage tentered to him, for signature, an acquittance, which he said he would like to first submit to counsel, who, upon examination, advised against continuing the transaction; that he did not return for the stock, nor did he receive it, nor was it ever tendered to him. He, however, kept the note and used the proceeds of the check. In January, 1915, his attorneys offered to return $2,000 and the note.

The case thus made out is one or accord and satisfaction unexecuted, which may be specifically enforced in equity on the principle laid down in Headley v. Leavitt, 65 N. J. Eq. 748, 55 Atl. 731; s. c, 68 N. J. Eq. 591, 60 Atl. 963; Trenton Street Ry. Co. v. Lawlor, 74 N. J. Eq. 828, 71 Atl. 234, 74 Atl. 668. This was not controverted, and it was conceded upon the argument and in the brief of counsel, that the complainants might properly...