State v. Palestine Bldg. Ass'n of Hudson County

• Decision Date: 03 June 1897
• Citation: 37 A. 723,60 N.J.L. 357
• Parties: STATE (SPENGEMAN, Prosecutor) v. PALESTINE BLDG. ASS'N OF HUDSON COUNTY.
• Court: New Jersey Supreme Court

37 A. 723

60 N.J.L. 357

STATE (SPENGEMAN, Prosecutor)

v. PALESTINE BLDG. ASS'N OF HUDSON COUNTY.

Supreme Court of New Jersey.

June 3, 1897.

(Syllabus by the Court.)

Certiorari by the state, at the prosecution of Frederick H. Spengeman, against the Palestine Building Association of Hudson County. Affirmed.

Argued February term, 1597, before MAGIE, LUDLOW, and DIXON. JJ.

John Garrlck, for prosecutor.

Henry G. Melosh, for plaintiff below.

DIXON, J. By this certiorari a judgment of the district court of Jersey City in favor of the plaintiff below against the present prosecutor is brought up for review. The first ground of objection is that the testimony was insufficient to warrant a verdict for the plaintiff, and therefore a motion to nonsuit should have been granted. The testimony tended to show the following facts: That the defendant, a real-estate agent, had for sale the land of one Tompkins, and, being also a director in the plaintiff association, was appointed a member of its committee to purchase a site for a building; that on a proposition being made in the association to buy the Tompkins land at a price not exceeding $9,000. the defendant agreed with the association that, if it would purchase the land, he would allow his commission to the association, and thus reduce the price by so much; that, relying on this agreement, the association bought the land at the nominal price of $8,750, and paid that sum to Tompkins, who thereupon paid the defendant a commission of 2 1/2 per cent. amounting to $218.75, for which the present judgment was rendered. If the jury believed these to be the real facts, evidently a verdict for the plaintiff was right, unless the objections hereafter to be noticed were fatal to the claim.

It is next insisted that as the narr. contained only the common counts, it could not legally sustain the cause of action. We think the recovery may rest upon the court for money had and received by the defendant for the use of the plaintiff. Regarding this count with the utmost strictness, it embraces those cases in which the defendant has received money that ex æquo et bono belongs to the plaintiff. Such was this case. Upon the facts above stated, the agreement of the defendant could have been exactly performed only by his allowing his claim against Tompkins for commissions to be canceled by the plaintiff on delivery of the deed, so that he might accept from the plaintiff $8,750, less the commission of $218.75, as the full price of the land. This shows that in strictness, as between the plaintiff and defendant, the $218.75 should never have passed out of the plaintiff's possession, but should always have remained its property. The fact that in the transaction which took place in lieu of the exact performance of the defend ant's agreement the plaintiff paid Tompkins, the nominal price, $S,750, and Tompkins paid the...