Bensel v. Anderson

101 A. 262, 87 N.J. Eq. 364, 2 Stock. 364, 1917 N.J. LEXIS 456

• Court: Supreme Court of New Jersey
• Decided: March 5, 1917
• Status: Published

Opinion

Per Curiam.

We agree with the reasoning of the learned vice-chancellor and in the main with his result. The decree relieves’ Bensel of his liability on the note of $4,650, which existed prior to the arrangement now declared void. He ought not to profit by an agreement he repudiates, and equity requires that the situation existing when that agreement was made, should, as far as possible, be restored. This can be done by so modifying the decree that the bank may proceed on its judgment for $5,443.79 primarily against Bensel to the extent of $4,650, with interest from the date from which interest was calculated in entering the judgment, and the costs of suit, and requiring it to proceed primarily against Anderson for the balance; and by requiring Anderson to s'atisfy that balance and cancel the judgment upon the payment by Bensel or out of his property of the $4,650, interest thereon and costs included in the bank’s judgment.

Let the record be remitted to the court of chancery in order that the decree may be thus modified.

For affirmance—None. For reversal—Garrison, Black, Wi-iite—3. For modification—The Chief-Justice, Swayze, Trenchard, Parker, Bergen, Minturn, Heppenheimer, Williams—8.