Citation Numbers: 3 A.2d 562, 121 N.J.L. 507
Judges: The opinion of the court was delivered by CASE, J.
Filed Date: 1/13/1939
Status: Precedential
Modified Date: 1/12/2023
The appeal is from a judgment in the Supreme Court dismissing plaintiff's complaint and awarding the *Page 508 defendant the sum of $1,890, and costs, on its counter-claim. The judgment followed an order, made upon ex parte affidavits, striking plaintiff's reply to defendant's answer and plaintiff's answer to defendant's counter-claim upon the ground that the same "are in part sham and in part frivolous." We have not the benefit of an opinion by the court below and are not informed as to what part is sham or what part is frivolous.
Plaintiff sued on the defendant's promissory note, regular on its face and carrying interest at five per centum per annum, in the amount of $11,100. The answer denied in toto the truth of the matters contained in the complaint and set up nine separate defenses to which was appended a counter-claim in the amount of $1,890. It is clear, however, that the blanket denial of the plaintiff's complaint was not justified inasmuch as defendant was and is admittedly indebted to plaintiff on two transactions, conceded to be loans, aggregating $2,700 plus interest.
The disputable question, involving both law and fact, is whether $8,400 of the amount sued for is owing to plaintiff as a shareholder or as a creditor, and if as a shareholder then whether defendant may recover on its counter-claim the sum of $1,890 for interest paid thereon under the assumption that it was a loan. It is the contention of the respondent that the $8,400 represented a shareholder's interest and not a debt and that the plaintiff could not recover as to it and that the interest paid thereon by the defendant was recoverable under the latter's counter-claim. But, even if we assume that contention to be sound, there remains the plaintiff's legitimate loan for $2,700 of which no recognition was taken in the striking of the pleadings or in the entry of judgment, and this error alone would require a reversal.
Beyond that we find that the transactions wrapped up in the $8,400 claim, although clouded factually with doubt, nevertheless are not so clearly resolved against the plaintiff as to justify the striking of the complaint. Plaintiff actually placed with the defendant, in several different sums, the aggegrate of $8,400 which the defendant contended, in its *Page 509
pleadings and on the motion, with sustaining affidavit, was not a loan but was in purchase of the defendant's income shares. The plaintiff, however, contended and submitted proof to the effect that she had advanced that sum of money as a loan and that the defendant's shares, which were in fact delivered to her, were delivered as security and not as something purchased. Later, in October of 1932, the defendant definitely recalled the certificates, gave in their stead its promissory note in the amount of $8,400 bearing five per cent. interest, and denominated the transaction a loan. The interest thereon was paid regularly, $210 every six months, until and including May 17th, 1937, aggregating $1,890, the subject-matter of the counter-claimsupra. Still later, September 15th, 1936, defendant recalled the $8,400 note and the notes aggregating $2,700 and gave in lieu thereof the note for $11,100 now in suit. It is said by the respondent that the affidavit submitted by plaintiff on the character of the $8,400 transaction runs counter to the wording on the face of the certificates which she accepted, that the affidavit thus becomes an attempt to alter or vary the terms of a written contract by parol, and that therefore, under the rule stated in Naumberg v. Young,
On the holding that plaintiff's pleading was in part frivolous, we repeat that we are not told what part was frivolous and we add that on a motion to strike because of alleged insufficiency of law the truthfulness of the pleading is assumed. The rule is stated thus in Milberg v. Keuthe,
The judgment below will be reversed, costs to abide the event. *Page 511 For affirmance — None.
For reversal — THE CHIEF JUSTICE, TRENCHARD, PARKER, CASE, BODINE, DONGES, HEHER, PERSKIE, PORTER, HETFIELD, DEAR, WELLS, WOLFSKEIL, RAFFERTY, WALKER, JJ. 15.