Wakeman v. Kingsland

• Citation: 46 N.J.E. 113,18 A. 680
• Parties: WAKEMAN v. KINGSLAND et al.
• Decision Date: 15 November 1889
• Court: New Jersey Court of Chancery

18 A. 680

46 N.J.E. 113

WAKEMAN

v. KINGSLAND et al.

Court of Chancery of New Jersey.

Nov. 15, 1889.

(Syllabus by the Court.)

On motion to strike out cross-bills.

James E. Howell, for plaintiff. Frederick H Pilch and William B. Guild, for defendant.

VAN FLEET, V. C. This is an interpleader suit. The bill is a strict interpleader bill, and not a bill in the nature of an interpleader bill. Briefly stated, the case made by the bill is as follows: A firm of builders, doing business under the name of Noble & Van Aulen, agreed in writing with the complainant, by two separate contracts made on different dates, to erect and finish two double houses and two other buildings for two distinct sums, to be paid in certain specific parts as the work progressed. The contracts were filed in such manner as exempt the buildings from lien except to the contractors. The buildings have been completed, and there remains in the hands of the complainant, of the moneys earned under the contracts, between $2,900 and $3,000. Five orders, in favor of different persons, have been drawn by the contractors on the complainant, and lodged with him; and thirteen different persons, who claim either to have furnished material or done work in the erection of the buildings, have served notices on the complainant, asserting a right, under the third section of the mechanic's lien law, to the moneys remaining due on the contracts. Some of these notices were served nearly at the same time. Some are imperfect in form. Some of the orders, perhaps all, are drawn in such form as to render it uncertain whether, without the aid of extrinsic evidence, they are entitled to be regarded as equitable assignments of the money in question. The total amount of the orders and notices is largely in excess of the sum still remaining due to the contractors, and each of the several claimants insists that he is entitled to be paid the whole of his claim out of the fund in controversy. The complainant claims to occupy a position of neutrality towards all of the claimants, and offers to bring the moneys in dispute into court, in order that the claimants may, by a litigation among themselves, have their respective rights to it determined. The fund being insufficient to pay all the claims, and the rights of the claimants being uncertain and disputed, there would seem to be no doubt, if his bill discloses the whole case, that the complainant is entitled to the protection he asks.

Two of the defendants—Joseph Kingsland and Thomas A. Murphy—have, besides answering, filed cross-bills, asking that affirmative relief may be given to them against the complainant. Stated in substance Mr. Kingsland's cross-bill alleges that the contractors in April, 1889, drew an order in his favor on the complainant, which in July, 1889, was delivered to the complainant, and verbally accepted by him, on condition, however, that Kingsland should complete certain work in the two double houses mentioned in one of the contracts, and when this work was completed the order should be paid. It is then alleged that Kingsland completed the work required, but that the complainant has, on demand, refused to pay the order. A decree is asked compelling the complainant to pay the amount of the order, with interest and costs. The cross-bill of Mr. Murphy alleges that two orders were drawn by the contractors in his favor on the complainant, the first for $1,300, bearing date April 11, 1889, and the second for $600, bearing date May 20, 1889; and that the first was delivered to the complainant and left with him on the day of its date, and the second was delivered to him and left with him May 22, 1889. It is then charged that the drawing of these orders by the contractors, and the delivery of them to the complainant, operated as equitable assignments of so much of the moneys as had prior to the date of the delivery of the orders been earned under the contracts, and as should be subsequently earned under them, as would be sufficient to pay the orders. The cross-bill then alleges that three days after the delivery of the second order, namely, May 25, 1889, the complainant, of his own wrong and in violation of the rights of Murphy, and without Murphy's knowledge, paid over to the contractors $800 of the moneys, which, prior to that date, had been earned under the contracts, and thus reduced, to that extent, the fund which he offers to pay into court. Plainly stated, the charge is this: That the complainant, with full knowledge of Murphy's right, paid to the contractors $800, which in equity belonged to Murphy. Murphy prays in case the court, in disposing of the fund in dispute, shall find that he is not entitled to enough of it to satisfy both of his orders with interest, that a decree may then be made in his favor against the complainant for the whole or such part of the $800 as may be required to satisfy the debt which his orders represent.

The complainant moves to strike out the cross-bills on the ground that in a strict interpleader suit no defense can be made by cross-...