Waln v. Waln

34 A. 1068, 58 N.J.L. 640, 29 Vroom 640, 1896 N.J. LEXIS 71

• Court: Supreme Court of New Jersey
• Decided: March 15, 1896
• Status: Published

Opinion

The opinion of the court was delivered by

Van Syckel, J.

This suit was brought by Henry C. Wain against George Wain upon an acknowledgment of indebtedness, in writing, of which the following is a copy:

“Rec’d, Walnford, N. J., April 1st, 1873, from Sarah W. Hendrickson, ten thousand five hundred and seventy dollars, payable with interest.

“ $10,570.

Geo. Waln.”

This instrument was assigned by Sarah W. Hendrickson, under her hand and seal, on the 6th day of February, 1888, to the plaintiff.

The defence is a release under the hand and a scroll seal of Sarah W. Hendrickson, executed and delivered by her to George Wain, the defendant, in the State of Pennsylvania, on the 14th day of April, 1875.

The question whether Sarah W. Hendrickson made a gift of the money mentioned in said writing to George Wain was submitted by the trial court to the jury, with proper instructions.

The only alleged errors which it is deemed necessary to consider are:

First. Whether there was error in refusing to charge the jury that a sealed release without sufficient consideration was void.

Second. Whether there is error in the refusal to charge “ that endorsements of payments on the writing dated April 1st, 1873, bearing date after the date of the release, are very strong evidence of the truth thereof, and are evidence of the same nature as books of account.”

Our statute concerning evidence (Gen. Stat., p. 1413, § 72), permitting the consideration to be controverted in actions on sealed instruments, does not apply to a release. Wain v. Wain, 24 Vroom 429.

That case further holds that a release executed in Pennsylvania, with.a scroll seal, will be regarded here as a simple contract, in the absence of evidence to show that the common law upon that subject does not prevail in Pennsylvania.

In the ease before us, it was proven that a scroll is sufficient as a seal by the law of Pennsylvania. The release being under seal the consideration could not be questioned, and there was no error in the refusal to charge the first request. Aller v. Aller, 11 Vroom 446; Braden v. Ward, 13 Id. 519 ; Waln v. Waln, 24 Id. 429.

The second request to charge is equally without merit.

Books of account are not evidence of payment of money. The request to charge that the endorsed payments after the release were evidence of the same nature as books of account, was a request in legal effect to charge that such endorsements had no probative force whatever in favor of the plaintiff’s claim. The refusal to charge such a proposition could have done no injury to the plaintiff.

The judgment should be affirmed.

For affirmance—The Chancellor, Chief Justice, Depue, Dixon, G-ummere, Lippincott, Ludlow, Mague, Van Syckel, Barkalow, Bogert, Nixon. 12.

For reversal—None.