Isham v. Cooper , 56 N.J. Eq. 398 ( 1898 )

The opinion of the court was delivered by

Dixon, J.

This is an appeal from an order of the chancellor refusing to grant a preliminary injunction to restrain the defendants from enforcing a judgment, which they had obtained against the complainant in the supreme court of this state.

The judgment was based upon a contract which, it was claimed, the complainant had made by placing his initials upon a written document. The bill alleges that the complainant placed his initials there, not for the purpose of contracting, but only to attest an interlineation then made upon the instrument; that his placing them in such a position as to lead a court of law to read them into the contract, was the result of inadvertence and mistake, from which the court of chancery should give him relief. The answer avers that, in the trial at law, upon which the judgment was rendered, the complainant likewise insisted that he had placed his initials upon the instrument, not for the purpose of contracting, but merely to attest the interlineation, and relied upon that proposition of fact as a legal defence to the suit; that the trial court accepted the proposition as a legal defence and submitted its truth to the jury, who, by their verdict, found it to be untrue; and the defendants thereupon insist that the fact is res judicata against the complainant, and cannot be retried in equity.

In response to this, the positions of the complainant are, first, that the question of fact was not tried at law, and second, that even if it was, it' presented an issue over which a court of law had no jurisdiction, and hence the decision of that court is not binding upon him.

As to the first position it must suffice to state that, after examining carefully the evidence submitted on the motion for injunction, including the proceedings on the trial at law, we think the averments of the answer are substantially correct.

As to the second position, it is not now necessary to decide whether, when at the instance of a defendant, a court of law has received a proposition of fact as a legal defence, and because of its untruth has rendered judgment against him, a court of equity should, at the instance of the same party, determine for itself whether the proposition was admissible as a legal defence, and, if it answers that question in the negative, should interfere with the judgment, because the proposition, if true, constitutes an equitable defence, for the order under review can properly be supported on the ground that the proposition set up in this case was, if true, a legal defence.

In Kean v. Davis, 1 Zab. 683, Chief-Justice Green, delivering the opinion of this court, sitting as a court of law, declares that the cases “fully establish the principle that when it is doubtful on the face of the instrument whether it was designed to operate as a personal engagement of the party signing it, or otherwise, parol evidence is admissible to show the true character of the transaction ; ” and upon that principle this court reversed a judgment, because, at the trial in a law court, evidence offered by the defendant to show in what capacity he had written his signature upon the instrument, was rejected.

An inspection of the writing now in controversy satisfies us that it is doubtful on the face of the instrument whether the complainant’s initials were written by him for the purpose of binding him to a contract, as the defendants claim, or for the purpose of attesting an interlineation, as he claims.

The initials appear in the body of a letter addressed by the complainant to the defendants, and the important words are written as and by (you) H. H. I. follows: “and shall be cared for by the company until,” &c.

On the suggestion being made, the probability is perceived at once that the initials may have been written with either intent, and which actually existed must be decided on extrinsic evidence. No doubt, in reaching a decision, the mind would be strongly influenced on ascertaining whether the word “you” was crossed out when the initials were written or afterwards, but this latter question would not be the same question as the former; it would be only subsidiary, and we think it was so treated at the trial.

Our conclusion is, that the question of fact between these parties was submitted by them to the appropriate tribunal, and its judgment thereon precludes further controversy.

The order appealed from is affirmed.

For affirmance — The Chief-Justice, Dixon, Garrison, Gummere, Lippincott, Ludlow, Van Syckel, Adams, Bogert, Hendrickson, Krueger, Nixon, Vredenburgh — 13.

For reversal — None.