Whiteman Food Products Co. v. G. Arrigoni & C., Societa Per Azioni, A--412

• Decision Date: 22 September 1953
• Docket Number: No. A--412,A--412
• Parties: WHITEMAN FOOD PRODUCTS CO. v. G. ARRIGONI & C., SOCIETA PER AZIONI.
• Court: New Jersey Superior Court — Appellate Division

Page 359

27 N.J.Super. 359

99 A.2d 434

WHITEMAN FOOD PRODUCTS CO. v. G. ARRIGONI & C., SOCIETA PER AZIONI.

No. A--412.

Superior Court of New Jersey

Appellate Division.

Argued Aug. 3, 1953.

Decided Sept. 22, 1953.

Saul J. Zucker, Newark, for appellant (Kristeller & Zucker, Newark, attorneys.)

Samuel H. Nelson, Newark, for respondent (Sandles & Sandles, Newark, attorneys.)

Before Judges BIGELOW, DANIEL J. BRENNAN and HUGHES.

The opinion of the court was delivered by

HUGHES, J.S.C. (temporarily assigned).

This appeal challenges the propriety of two orders entered by Judge Drewen of the Hudson County Court, the first dated March 20, 1953 quashing a writ of attachment theretofore allowed by another of the learned judges of such court, and the second dated April 1, 1953 refusing to accept additional proofs to support the attachment thus quashed, and on such basis to vacate the order of March 20, 1953.

The focal order for issuance of the attachment writ was entered on February 16, 1953 on the application of plaintiff-appellant (hereinafter called appellant), a corporation of the Commonwealth of Pennsylvania, against goods in New Jersey which had been shipped by the defendant-respondent (hereinafter called respondent), a foreign (Italian) corporation, non-resident in the sense of the attachment statute. Such application was supported by the affidavit, dated February 11, 1953, of Mr. Whiteman, president of appellant, which apparently constituted '* * * proof to the satisfaction of the court, establishing the plaintiff's right to the writ * * *' (former Rule 3:72--1), and resulted in the entry of the order that writ of attachment should issue. The relevant tenor of such affidavit dealt with an alleged contract of purchase of 3,500 barrels of gherkins by appellant of respondent, and respondent's breach by failure of delivery. Respondent moved on several grounds to quash the writ, the prime attack being based upon the alleged deficiencies of such supporting affidavit. It was on the basis of the insufficiency of such affidavit that Judge Drewen quashed the writ, commenting in his opinion that 'I do not see how anyone could possibly tell upon a basis of evidential proof that there was a contract between these parties or the terms thereof, or any particular in which it can be said to have been breached.'

In a supplemental memorandum leading to its order of March 20, 1953, the court referred to a suggestion that to remedy these defects '* * * additional affidavits be submitted under former Rule 3:72--3.' In rejecting this proposal the court stated its reasons, Inter alia:

'Counsel for the plaintiff suggests that additional affidavits be submitted under Rule 3:72--3. I take it that the submission of affidavits under that rule is within the discretion of the court. There are factors here, in the Court's opinion, that definitely militate against the exercise of such discretion in favor of what plaintiff asks.

'This writ was issued on February 16; the attachment was made on that day; and the subject of the attachment is a ship's cargo of perishable food-stuffs brought to this port from Italy and discharged at the Holland-American Line docks in Hoboken. Argument under defendant's attack upon the writ was initiated on Monday, March 9, the two points urged by defendant on that day having been decided against the defendant. On defendant's application, the argument was continued over for further hearing on March 13, and it was at the conclusion of that hearing that the court dictated its letter of opinion of the same date, already referred to. Today is March 18, and no affidavit has been proposed to the court as a subject of additional submission to the papers already in.

'I am bound to observe another feature of the case which I think puts the court upon notice, so to speak. The original plaintiff here is the consignee of the shipment that has been attached. * * *'

'With regard to the rule invoked respecting the application to submit further affidavits, it is the court's interpretation of that rule that it is not intended, as already expressed in the opinion letter, to permit the making of a case De novo where a writ of attachment has already been issued on defective papers, an attachment made under the writ, and goods held for so long a period as a month or more.

'Moreover, if the court were to allow additional affidavits, it could in reason by only upon the assumption that such affidavits would make good the establishment of a case, and there is nothing to justify any such attitude of mind.

'The requirements of the rule with respect to the character of affidavits is such as to admit of no mistake or misunderstanding. It follows that if one is not required to establish the right which is presupposed by the attachment provision of the rules, then a writ of attachment may be sought out in almost any and every legally inadequate situation, and oppression and abuse result.'

Later, however, a much more detailed affidavit with a formidable file of exhibits was tendered the same judge who had quashed the writ of attachment and he entered an order to show cause which made possible further argument in the matter, at the conclusion of which such learned judge rejected such proofs and refused to vacate his previous order quashing the writ, again purportedly in the exercise of his discretion in the premises and again, from an excess of fairness to the litigants, documenting his reasons, in part, as follows:

'The writ of attachment in this case as originally ordered by * * * this court was, after argument diligently prepared and expounded, quashed in Part 3 of the court. That was done a week or more ago. I think it is important to keep that circumstance in mind when we consider plaintiff's reliance on the provision of the rule which states that 'In addition to other powers of amendment, the court may, at any stage of the proceedings, permit submission of additional affidavits.' There is no longer any stage of the proceedings in which the writ was issued; and what is rather nakedly presented to the court's mind is what I regard as a very substantial question: How long can a vacated writ be regarded as still in effect and subject to supplemental proof?

'I am fully aware of the rule and of the spirit of our law which bids us regard the attachment procedure as one that is to be liberally construed, and that the attachment law itself is to be liberally construed as a remedial law for the protection of resident and non-resident claimants. What must be soberly borne in mind, in my opinion, is that liberal construction has its own discipline, its own rules and its own necessities; that if it were not subjected to these rules and discipline and necessities, it would soon cease to be liberal and become as a result a chaos and, as chaos always does, would introduce some form or other of abuse and oppression.

'It is certainly not within any realm of liberal construction to regard a writ of attachment vacated a week or more ago as subject to what counsel now says would suffice to establish the right to the writ in the first instance or would have established that right. This is not an application for a new writ. If it were, the considerations called for would of necessity be entirely different. The proceeding here is to supplement the proofs that were required upon the application for the writ in the first instance. Of course, we are bound to think of the question already asked, that which attempts to find an answer to the query as to how long a vacated writ is still in force in order to be regarded as a basis for continued proceedings.

'If the exactions of the rule of court that stipulates the evidential character of affidavits are referred to as procedural technicalities in the reference already mentioned, I cannot agree that such is their nature. The rule of court or a principle of law which requires that proof be evidentially made is not a procedural technicality. It is matter of prime substance, in my opinion.'

Accordingly, it is basically argued here that the writ was improperly quashed by the first order and, secondly, that the court abused its discretion in rejecting the supplemental proofs offered for its legal resuscitation. On the first point we agree that the affidavit was insufficient to support the order for issuance of the writ. Its copious references to the 'contract' rest upon and are limited factually by two documents, incorporated by reference, which negate rather than support the concept of a legal contract. The offer to buy, dated April 2, 1952, insisted that 'The below prices guaranteed against market decline at time of shipment.' To this respondent's rejoinder was '* * * We definitely do not accept 'market decline. " No meeting of the minds as to this important...