West Side Trust Co. v. Gascoigne

• Decision Date: 16 March 1956
• Docket Number: No. A--160,A--160
• Citation: 39 N.J.Super. 467,121 A.2d 441
• Parties: WEST SIDE TRUST COMPANY, a trust company of New Jersey, Plaintiff-Respondent, v. Arthur O. GASCOIGNE and Sydney Jackson, partners trading as Jackson Contractors, Defendants, and Sydney Jackson, Defendant-Appellant. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 467

39 N.J.Super. 467

121 A.2d 441

WEST SIDE TRUST COMPANY, a trust company of New Jersey Plaintiff-Respondent, v. Arthur O. GASCOIGNE and Sydney Jackson, partners trading as Jackson Contractors, Defendants and Sydney Jackson, Defendant-Appellant.

No. A--160.

Superior Court of New Jersey Appellate Division.

Argued March 5, 1956.

Decided March 16, 1956.

[121 A.2d 442] Joseph L. Freiman, Union City, for appellant.

Walter J. Bilder, Newark, for respondent (Bilder, Bilder & Kaufman, Newark, attorneys).

Before Judges CLAPP, JAYNE and FRANCIS.

The opinion of the court was delivered by

FRANCIS, J.A.D.

Plaintiff bank sought judgments on three promissory notes, alleged to represent obligations of the defendants Arthur O. Gascoigne and Sydney Jackson, trading as partners under the name Jackson Contractros. The complaint is in three counts, each on a separate note. The first bears the date July 24, 1952; the second, December 3, 1952, and the third, March 6, 1953. They are signed 'Jackson Contractors, Arthur O. Gascoigne.' The appendix does not disclose any answer filed by Gascoigne. Jackson answered, denying the existence of a partnership at the times in question and asserting that the notes represented personal obligations of Gascoigne. On motion, summary judgment was entered against Jackson on the second and third counts; the first count was held for trial because the trial court concluded that a disputed factual issue existed as to that note. West Side Trust Co. v. Gascoigne, 37 N.J.Super. 588, 117 A.2d 682 (Law Div.1955). This appeal followed.

At the outset a procedural bar presents itself. A judgment is final so as to be reviewable only when it disposes of the litigation as to all issues and all parties. Here only two of the three causes of action were adjudicated; the judgment is interlocutory in character and not appealable as of right. R.R. 2:2--1; Petersen v. Falzarano, 6 N.J. 447, 452, 79 A.2d 50 (1951); Thatcher v. Jerry O'Mahony, 37 N.J.Super. 139, 142, 117 A.2d 131 (App.Div. 1955); Vollbehr v. Ingram, 22 N.J.Super. 249, 252, 92 A.2d 81 (App.Div. 1952). Moreover, no effort was made to cloak it with the quality of finality under R.R. 4:55--2; Thatcher v. Jerry O'Mahony, supra, 37 N.J.Super.

at page 142, 117 A.2d 131; Bartzak v. John W. McGrath Corp., 23 N.J.Super. 301, 92 A.2d 819 (App.Div.1952); Eisenberg v. Trad Television Corp., 22 N.J.Super. 332, 92 A.2d 50 (App.Div.1952).

It is to be regretted that the flow of unauthorized appeals continues despite reminders of the practice requirements. In re Opper's Estate, 29 N.J.Super. 520, 527, 103 A.2d 19 (App.Div.1954); Sagarese v. Board of Health, Morristown, 27 N.J.Super. 400, 402, 99 A.2d 533 (App.Div.1953); 9 Rutgers L.Rev. 319. Attention is called to the thoroughly informative discussion of the subject of appeals from interlocutory orders by Justice Jacobs in Appeal of Pennsylvania Railroad Co., 20 N.J. 398, 120 A.2d 94 (1956). Study of the opinion will bring about an understanding of the philosophy on which the final judgment requirement rests. Further, it will serve to create an awareness of the broad power of this Division to grant leave to appeal from intermediate orders or judgments when the grounds therefore are 'substantial'--where the rights involved are "too important to be denied review." Id., 20 N.J. at page 409, 120 A.2d at page 100; R.R. 2:2--3(b).

The parties have argued the merits of the controversy without reference to or discussion of the procedural problem. The summary judgment is one which the trial court might have treated as final under R.R. 4:55--2 if request to do so had been made. The argument on the merits persuaded us that the questioned summary disposition was not warranted. Consequently, the spirit of the rules has impelled us to decide the matter now and thus avoid a renewal of the appeal which would probably come after final judgment, if we dismissed this one as premature.

Summary judgment is proper only where the record shows palpably that there is no genuine issue as to any material fact in the case. R.R. 4:58--3. The papers supporting the motion are required to be closely scrutinized; those opposed to it indulgently treated. Doubts must be resolved in favor of the conventional trial. The matter cannot be decided on the affidavits of the parties where inferences for and against the existence of the cause of action or the defense arise therefrom, no matter how strongly they point in one Turning to the facts, it appears that Jackson and Gascoigne were partners trading as Jackson Contractors from 1946 until September 1, 1949. The partnership was dissolved and on the latter date Gascoigne filed a certificate in the Essex County Clerk's Office under N.J.S.A. 56:1--1, 2, establishing that thereafter he alone was doing business under the trade name 'Jackson Contractors.'

direction or the other. Affidavits are of value only when they demonstrate palpably the absence of a factual dispute as to elements of the cause of action or defense. Judson v. Peoples Bank & Trust Co., 17 N.J. 67, 76, 110 A.2d 24 (1954); Mayflower Industries v. Thor Corp., 15 N.J.Super. 139, 155, 83 A.2d 246 (Ch.Div.1951), affirmed 9 N.J. 605, 89 A.2d 242 (1952).

In June 1952 Gascoigne sought a loan from the plaintiff bank. He claims to have advised the vice-president with whom he dealt that he was operating Jackson Contractors himself. The bank official's recollection (according to a deposition) was that Gascoigne said he and Jackson were partners.

In any event, on June 23 this vice-president had Gascoigne fill out and sign an elaborate financial statement for Jackson Contractors. A portion of this statement is as follows:

'Partnership. (State whether partnership operates under written Articles of Copartnership or verbal agreement): Verbal

Date of Partnership Agreement: 1940

Date of expiration: none

Listed below are all the General and Special Partners of this firm:

Name Amount of Capital Contributed

General Partners: * * *

Arthur O. Gascoigne (unanswered)

Special Partners:

Sydney Jackson (unanswered)

Extent to which Special partners are responsible for debts of this partnership and to what date: (unanswered)

Signatures (Firm and Partners)

JACKSON CONTRACTORS ARTHUR O. GASCOIGNE

ALL PARTNERS SHOULD SIGN

When There Is No Written Partnership Agreement'

(Insertion 'unanswered' is ours.)

Manifestly this statement is not only incomplete but lacks vital information as to the nature of the partnership. However no inquiry was ever made of Gascoigne by any agent of the bank at any time as to the particulars of Jackson's association with the alleged firm; nor was he ever asked to obtain Jackson's signature to the statement. It is undisputed also that no one ever communicated with Jackson in connection with his alleged interest in the firm when the notes in question were executed.

On July 24, 1952, a month after the financial statement was supplied, the bank loaned money on the note signed 'Jackson Contractors, Arthur O. Gascoigne' which is the subject of the first count of the complaint.

Gascoigne signed a certificate of dissolution of Jackson Contractors on July 29, 1952, and filed it in the county clerk's office on August 1. According to Jackson's affidavit, on or about August 1, through a subterfuge, Gascoigne obtained his signature to an account card of the bank and on a trade name certificate as a partner of Jackson Contractors. He was told that this was necessary in order to collect an old debt due the firm when he was a member prior to September 1, 1949. The new certificate was filed by Gascoigne on August 1, 1952; a copy and the firm account card were given to the bank.

Thereafter two additional loans were granted, one on December 4, 1952 and the other on March 6, 1953. These notes were signed in the same manner as the first one. No further financial statement was requested in connection with the transactons. It is undisputed that Jackson was not aware of the loans. And there is no proof that he received any of the proceeds.

The trial court regarded the filing on August 1, 1952 of the trade name certificate signed by Jackson and Gascoigne as dispositive of the claim on the second and third counts of the complaint. He took the view that under N.J.S.A. 42:1--16 this certificate establish a statutory estoppel against any denial by Jackson of the existence of a partnership after the filing date thereof, so far as the notes of December 3, 1952 and March 6, 1953 are concerned.

With respect to the note of July 24, 1952, a factual issue as to the existence of a partnership was found to arise, presumably from the financial statement and the proof that the trade name certificate then on record showed Gascoigne as the sole operator of Jackson Contractors. No review of this holding is sought.

N.J.S.A. 42:1--16 (Uniform Partnership Law, 7 U.L.A., § 16, at 94) provides:

'1. When a person, by words spoken or written or by...