Marsella v. Bloch

The facts are adequately stated, and the reasons for the affirmance are, for the most part, adequately given in the percuriam opinion of the Supreme Court. We conclude that there should be an affirmance in this court, but that a further treatment of one or two points made for appellant is desirable.

1. With respect to the exclusion from evidence of a paper-writing called by appellant's counsel a "notice of revocation," the Supreme Court seems not to have expressed its own view of the action taken by the trial court. That court certified in the state of the case that the paper had been rejected — first, because Ethel, defendant's daughter, was not her agent, and secondly, that the attempted revocation was after the introduction of a purchaser able and willing to meet the terms of sale. In our view both these reasons were erroneous so far as concerned the mere ruling on evidence, bearing in mind that the trial court was performing the functions of both judge and jury, the question presented for decision at that juncture was whether the judge should as judge admit in evidence a paper which, had there been a jury, should be laid before them for consideration. Both the agency and the qualifications of the purchaser were disputed, and could not be finally settled until the end of the case. As a jury could ligitimately have found that Ethel was invested with authority, and that the purchaser, Walter, did not meet the requirements, and as these were questions for the court acting as a jury to settle on all the evidence, and not in the middle of the trial, the paper, if properly phrased as a revocation, was admissible on the theory that the facts ultimately found might support it. The point is not unlike that determined in Weston Co. v. Benecke, 82 N.J.L. 445, where the judge, sitting without a jury, directed a nonsuit, and we held that while he might legitimately find at the end of the case that plaintiff was not entitled to recover, it was error to nonsuit when a disputed question of fact was presented. InStarr v. Torrey, 22 Id. 190, 194, a letter was admitted in evidence, although produced from the custody of the sender instead of that of the addressee, upon testimony being given explanatory of the fact that it had actually been mailed to the latter. In short, where the competency of a document as evidence is a mixed question of law and fact, and the matters of fact are such as ought to be submitted to the jury and not determined by the court, the document should be received in evidence and submitted to the jury, with proper instructions to disregard it if they find the facts adverse to its competency. No different rule should obtain merely because a jury is waived and the trial is conducted throughout by the court.

But though the reasons for exclusion at the time of offer were erroneous, the exclusion itself was not. The plain language of the paper, as will be seen by turning to the per curiam of the Supreme Court, shows that it is not a revocation of a broker's authority, but of an "option." And, as plaintiffs had an agency exclusive until revoked in writing, nothing short of a written revocation of that authority would terminate it.

2. The Supreme Court upheld the exclusion of the parol testimony, that when defendant signed the authority she was told that it ran only for two weeks, and this on the ground of parol testimony varying a written instrument. If defendant was induced to sign by a fraudulent misrepresentation of the contents of the paper, parol testimony is competent to show that. Alexander v.Brogley, 63 N.J.L. 307; Fagan v. Central Railroad Co., 93Id. 203. But the trial court properly put its exclusion on the ground that the specification of defenses furnished, pursuant to the act of 1910, page 496, section 2 (Comp. Stat., p. 1971,pl. 61b), did not set up fraudulent procurement as a defense. It is argued that such a claim should be considered whether specified or not, but with this we cannot agree. Where plaintiff in a District Court relies on a written contract, fraudulent procurement thereof is a defense, and must be specified if a specification is demanded, or it will not be available at the trial.

As to the other points involved, we concur in the per curiam opinion of the Supreme Court. The judgment is affirmed.

For affirmance — THE CHANCELLOR, CHIEF JUSTICE, TRENCHARD, PARKER, MINTURN, BLACK, CAMPBELL, WHITE, GARDNER, VAN BUSKIRK, CLARK, McGLENNON, KAYS, JJ. 13.

For reversal — None.