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and escape the preference of the Gould judgment in NeW York. The theory upon which the bill was dismissed in the court below, stated in a general way, was that there were no assets in New Jersey, and therefore no auxiliary letters could have been properly granted by the Surrogate. [1] With the view that there were no asSets in New Jersey we cannot agree under the conceded facts of this case. It appears that decedent was owner of some stocks, but the certificates were deposited in New York, and that the corporations were not New Jersey corporations. The intestate was interested in some royalties on copper ore. The Silver King Company had agreed with the intestate in 1907 to sell him crude oil for a period of years. He assigned his interest to the Miners' Smelting Company, who in turn sold its interest to McGuirk, who assigned to the intestate, so that the latter became entitled to the money payable under the agreement. He was indebted to the American Smelting Company for a loan, and to Secure this he and the Miners' Smelting Company pledged their interest to the American Smelting Company. The outcome of this series of transactions is that the American Smelting Company stands in the place of Miners' Smelting Company, and is entitled to the output of the ore upon paying the royalty therefor. To this royalty the estate is entitled. This constitutes assets in New Jersey within the rule stated by this court in Amparo Mining Co. v. Fidelity Trust Co., 75 N. J. Eq. 555, 73 Atl. 249, that the chose of action is in the jurisdiction where you Would have to go to enforce it, and, while this claim of the American Smelting Company might be enforced in New York where it is doing business, it could only be enforced in Some instances in New Jersey, its domicile. [2] This conclusion, however, does not end the case, for the right of auxiliary administration is governed by section 29 of the Orphans' Court Act (3 Comp. Stat. p. 3823), which, in case of a domiciliary administrator, provides, inter alia, that if such administrator shall neglect for the space of 60 days after the death of his decedent to make application in this state for letters of administration, then upon the application of any person alleging himself or herself to have any debt or legal claim against such decedent, which, by the laws of this state, survive against the personal representatives of parties deceased, the surrogate may issue letters of administration to such persons as he may select; and, in case application is made under this section by any one except such domiciliary administrator, letters shall be granted upon such notice to such administrator. This makes it clear that, where there is a domiciliary administrator, the application for letters auxiliary must come from such administrator, and, if he fails to make the applicã

tion within 60 days after the death of his decedent, a Creditor or relative may do so, and then only upon notice to the domiciliary administrator. It is manifest that the requirements of the provisions referred to were not strictly complied with. It may be said, however, with great force that the fact that the domiciliary administratrix waived her right to administration was not only equivalent to the stat-. utory notice of Such application being made, but was a Consenting act on her part that administration be granted in favor of the applicant. -[3,4] This brings us to a consideration of two questions upon the solution of which this case must turn: First, is this proceeding inStituted in good faith? Second, were there any bona fide New Jersey creditors? Both of these questions in the light of the facts and circumstances must be answered in the negative. As to the good faith of this proceeding: This has not been made plain to us. It is apparent that no administration in this state was necessary, since even if it was necessary, the domiciliary administratrix could sue. Mrs. Fleitman was domiciliary administratrix until she was removed on August 23, 1916. She was appointed in 1914. In 1916, two months before Mr. Gould filed his petition for her

removal, she waived her right of administra

tion in this State in favor of her brother. It is fair to assume that She Was aware at that time of Mr. Gould's intention to apply for her removal. In her answer to Mr. Gould's petition she tendered her resignation and consented that she be removed. Her brother was appointed administrator in this state on March 27, 1916. She was still domiciliary administratrix. She had had nearly two years in which to enforce any claim the estate had in New Jersey. She was removed August 23, 1916, and Mr. Fullerton was immediately appointed her successor. It is to be noted that she had divested herself of the right, as domiciliary administratrix, to apply for auxiliary letters in New Jersey by her Waiver in favor of her brother, which was very likely done in anticipation that Mr. Gould’s action would result in her being removed, and to forestall her successor from making such application, if he saw fit. All this appears to be part of a scheme to prevent New Jersey assets from falling within the preference of the Gould judgment. But an insuperable bar to the complainant's successfully maintaining this Suit is that there were no bona fide New Jersey CreditOrS. For the appellant, it is urged that the validity of the alleged claims could not be properly attacked in this suit, since that was a matter which rested with the administrator, and, if he did not object, it became a claim against the estate. This proposition is palpably unsound. In the first place, the claim must be a legal one. The status of creditor can only arise from a valid obligation of the debtor. If there is no such valid obligation, then it necessarily follows that there is neither a creditor nor a debtor. In fact, it appears, here, that the appellant in the courts below attempted to establish that there were New Jersey creditors and that they had valid claims against the estate. To that end the appellant produced Mr. Geer, who testified that he had a claim of $250 for back salary due him from the decedent since November, 1907. He does not attempt to explain why this claim remained unpaid for seven years, or why he made no effort to have it paid in decedent's lifetime. A Mr. Schulz, who said he had charge of the books, testified that at the time Of decedent’s death there was due to Geer three months’ salary, which, if true, would make Geer's claim $525 instead of $250. This Witness further testified that he did not have charge of the books after September 30, 1907, up to which date Geer had been paid in full; nevertheless he SWears that there Were three months' Salary Owing to Geer, whereas Geer says that the salary due him was $75 for October, and $175 for November, 1907. Geer claims that he had another transaction with decedent in 1909. Nothing appears to have been said then by the former to the latter about any claim for back Salary, although this was a transaction in which it appears that the decedent gave Geer a stock note for the Sum Of $10,000, upon Which note it is claimed there still remains unpaid $2,500, and which Geer assigned to the Assets Developing Company, Of Which Corporation the Complainant's predecessor, in administering the decedent's estate, was president. It further appears that, When Geer made his claim against the estate for his back salary, he had the stock note in his possession, on which, according to his story, there was due him $2,500, and he makes no satisfactory explanation why he made his claim only for the back salary. Geer further testified that he received no money from the Assets Company for the note which he subsequently assigned to it. The evidence Satisfies us that neither Geer's claim, for salary, nor the Assets Company’s claim, on the note, is real, and that neither is a New Jersey creditor of the deCeased. The only other claim made against the estate is that of the United Copper Company, a Corporation of this state. This claim is made up of two alleged claims of the Western Development Company, a foreign corporation, of Which the wife of Mr. Geer, who figures so prominently in all these transactions, is the president, and of an alleged claim of Ruth Noyes Heinze, the widow of the deceased, a resident of the state of New York. The Western Development Company assigned • their claims to the United Copper Company insurance, in aid of an action at law thereon, by the addition of certain agreements or stipulations not contained in the written contract, which it is charged were omitted through a mistake or neglect which was mutual, or fraudulently planned to deceive and mislead the complainants. The vice chancellor who heard the cause decided that the policy be reformed by noting thereon, as of the date of issue, that the property insured stood on leased ground; that it was subject to a chattel mortgage, and that a standard mortgage Clause be thereto attached, with loss payable to the mortgagee, and also enjoined the defendant from setting up, in the action at law, the defense that the policy was issued Without such notations thereon. From this the defendant has appealed. The undisputed facts are that on January 4, 1917, the defendant issued and delivered to one Antonio Caffaro its policy insuring him against loss or damage by fire for one year, except as therein provided, to an amount not exceeding $2,350, divided as follows: $1,500 on a store building, $200 on fixtures, and $650 on his stock of goods subject to conditions, inter alia, that the policy should be void if, unless otherwise agreed by indorsement thereon, the subject of the insurance be a building on ground not owned by the insured in fee simple, or, if it be perSonal property, it be, or shall become, incumbered by chattel mortgage; that the building insured was on ground not owned by the insured, nor was there any indorsement on the policy of an agreement that the policy was issued with that condition known and accepted by the defendant; that February 21, 1917, Caffaro sold the building and stock to Joseph Giammares, who, in part payment, gave him a chattel mortgage on the building and contents; that the policy was taken to the agent of defendant, who indorsed on it, “Ownership is now vested in Joseph Giammares as owner;” that the property was destroyed by fire about a month after the transfer, and, just before the year of limitation expired, a suit at law was brought by these complainants against the defendant, in which the latter pleaded as a defense that the policy was void, because the land was not owned by the insured, and also that the property was incumbered by a chattel mortgage. It is quite manifest that without a reformation of the policy such a defense would be good at law, but the decree absolutely destroys that defense. It is quite immaterial whether there was or was not a mutual mistake in the issuing of the original policy, for that came to an end when the property was transferred to Giammares, and the defendant was no longer bound unless it entered into a new Contract with the subsequent purchaser, which it was not bound to do. The assignment of an insurance policy, and the assent of the company thereto, constitute an independent contract with the assignee the same as if the policy

(108 A.)

on December 12 and 20, 1916, and Mrs. Heinze assigned her claim to the copper Company on December 21, 1916. These claims were filed on December 22, 1916, with Arthur P. Heinze, who was appointed in this state on March 27, 1916, under circumstances which have been above detailed, and Who Was succeeded by the appellant as such administrator on January 18, 1917.

It cannot successfully escape notice that at the time of the decedent's death and of the appointment of an administrator in this state, there were no bona fide New Jersey creditors, and that the artificial process which has been resorted to for the creation of New Jersey creditors fails of its purpose.

For the reason. that there were no bona fide New Jersey creditors, the decree below must be affirmed.

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had been reissued to him upon the terms and Conditions therein expressed. 14 R. C. L. p. 1007, § 185. And that is manifestly so in a case like the present, where it is claimed a different contract was made which included the protection of a chattel mortgage not in existence when the original policy was issued. What Complainants claim is that defendant agreed to make the policy good to one who was not an owner of the land, as well as to a chattel mortgagee, and to indemnify them in case of loss by fire. This could not be done by the plain terms of the policy without a notation thereon to that effect.

[1, 2] It may be proper to mention that in this case the decree requires the defendant to attach to the policy a standard mortgagee clause, which is quite a different engagement from One agreeing to pay a loss to a mortgagee. The first binds the company regardless of any defense it may have against certain acts of the insured, and the latter only to first pay, out of the loss, if any, the mortgagee's debt. The prayer of the bill is limited to the latter, nor is there any proof by complainant that the defendant was to execute and attach to the policy a standard mortgagee clause, and it was error to so decree. But the real question presented is whether the proof justifies a reformation of this written agreement upon the ground of mutual mistake. There is no proof in this case of any fraud which would be a basis for equitable interference, unless a disagréement of the parties as to the proposed cóntract is such a basis without convincing proof that the bargain was not correctly and truly expressed, which it is not. The right to have reformation prayed for depends oupon an agreement, part of which it is alleged was omitted when reduced to writing because of a mutual mistake which both admit, or the evidence shows they ought to admit, and it rests, in the last analysis, upon What the agreement was, and if it be claimed to be different from the writing, the proof ought to be clear and convincing that it was as claimed, but erroneously expressed in the written agreement, through some mutual misunderstanding, or mistake in neglecting to use proper words to express the contract really made. Speaking of the power of the court of equity to reform contractual writings, Vice Chancellor Van Fleet, in Cummins v. Bulgin, 37 N. J. Eq. 476, correctly stated the rule as follows:

“To warrant its exercise, however, the proof in demonstration of mistake must be clear and satisfactory, such as produces a strong conviction of its truth. That which is written will not be changed on loose, doubtful, or equivocal evidence.”

No question of rescission, upon the ground of a unilateral mistake arises in this case, for the complainants do not wish a rescission of the contract, for Without it they could not maintain their action at law. All they pray for is a reformation upon the ground of mutual mistake, which they allege amounted to a fraud, but there is no proof to sustain the claim of fraud. In Green v. Stone, 54 N. J. Eq. 387, 34 Atl. 1099, 55 Am. St. Rep. 577, Mr. Justice Depue, speaking for this court Said:

(108 A.)

“The doctrine that a contract or deed will not be reformed for mistake, in the absence of fraud or imposition, unless the mistake was mutual, that is, reciprocal and common to both parties, where each alike was under the same misconception as to the terms of the written instrument, is the settled doctrine of Courts of Equity,”

—and he cites with approval Cummins v. Bulgin, supra, and also from the opinion of Chief Justice Ames, in Diman v. Providence R. R. Co., 5 R. I. 130, a paraphrase of which is that, to reform a writing to make it accord with the alleged intent of one party who avers a mistake, when it accurately expresses the agreement as undertood by the other, would be just as far from expressing the agreement as before, and injure one the COSt Of precisely an equal Wrong to the Other. With these well-settled principles to apply to the Case under review, all that remains for us to decide is whether the complainants have ShOWn by their proofs such a situation as justifies the reformation which the vice chancellor advised. The complainants proved that after the transfer and the giving of the chattel mortgage, their broker took the chattel mortgage, the bill of Sale of the personal property, and policy of insurance to the Office of defendant's agent, and found there the agent's stenographer and notified her that the title of the new owner, Giammares, to the land on which the building stood was merely a lease-hold interest; that Caffaro, the vendor, had taken a chattel mortgage on the building and stock in part payment; had assigned the policy to the new owner, and desired the defendant company to note its assent thereon, and make the policy read that any loss should be payable to Caffaro as mortgagee by a notation on the policy, and that to this the Stenographer made no reply; that Subsequently the policy was mailed to the broker, who delivered it to Caffaro ; that neither read the policy or examined it to see that the notations were made until long after the fire, when it was discovered that the Only notation made Was that herein above set out, which assented. Only to change Of ownership. There is grave doubt as to the truth of this testimony, for Mr. Burton, an attorney at law, testified that he sent the policy by mail to the agent, he having drawn the bill of sale and chattel mortgage. He also testified that the policy was returned to him with the indorsement as to ownership only. But if the broker did all he testifies to, he expressly states that the Stenographer

did not make any reply, or agree to comply With his request, and aside from any want of authority of the stenographer to bargain for the Company, she did not expressly enter into any Such agreement. All she did was to note on the policy an assent to the transfer of ownership. The stenographer testified that complainant's broker did not bring the policy to her, but that it came to the Office through Mr. Burton ; that she made the indorsement and returned it to Mr. Burton; that she did not know of the chattel mortgage, and her instructions were not to issue any policy. On property subject to a chattel mortgage, and WOuld not have done it if asked to do so.

There does not seem to be any proof, of the character required, of any agreement except that expressed in the notation signed by the agent and attached to the policy. There was proof by the complainants that their broker asked for more, but none that it was agreed to, and certainly a court of equity will not make a contract for parties by inserting in a written agreement terms of which there is no proof that the contracting parties agreed to. The notation attached to the policy was brief and explicit, it was taken by COmplainants and held until after the destruction of the property by fire without protest, and they knew the policy was void unless the changed condition of the property Was noted on the policy. The notation attached could be read at a glance, and plainly disclosed that it did not contain what is now urged was omittes; by a mutual mistake. A perusal of the short rider attached to the policy would have disclosed the alleged error.

In disposing of this case we have assumed the authority of the Stenographer to bind the company and its agent, but that is not to be taken as a determination of that question, for that We do not decide. Here we have a written contract which we are asked to reform according to the understanding of one party, against the evidence of the other that no such agreement as the complainant avers was ever made. In other words, we are to make a contract for the parties without convincing proof of an agreement made but omitted from the writing by mutual mistake. We do not think that the evidence in this recOrd ShoWS a mutual reciprocal mistake “common to both parties, when each alike was under the same misconception as to the terms of the written instrument,” according to the rule in Green v. Stone, Supra. “Courts of equity do not grant the high remedy of reformation upon a probability; nor even upon the mere preponderance of evidence, but only upon a certainty of error.” Pom. Eq. Juris. $ 859, cited in Hupsch v. Resch, 45 N. J. Eq. 657, 18 Atl. 372, affirmed in 46 N. J. Eq. 609, 22 Atl. 56, on the opinion of Vice Chancellor Pitney in which he said “that he who asks to have, a Written instrument reformed must make Out a perfectly clear case, free from doubt.”

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The amendment of the Practice Act approved March 15, 1916 (P. L. p. 109), which provides that when causes are submitted to the court to be heard without a jury, any error made by the court in giving final judgment in the cause shall be subject to change, modification, or reversal without the grounds of objection having been specifically submitted to the court, is constitutional, and permits a review of any errors of law residing in the findings of the trial judge; provided any such errors shall be specified in grounds of appeal filed and served under rule 139 of the Supreme Court (1913).


Where the signatures of named payees of checks issued by a loan association upon supposititious applications for loans gotten up by its treasurer, payable at bank, were forged by the treasurer, who wrote his individual indorsement below those that were forged, and either drew in cash from, or had the amount of the checks passed to his own credit in his individual account in, the bank, which transactions extended over a period of four years and upwards, and included 32 checks in all, and the fraud could have been discovered by the loan association in the earliest stages of its perpetration by an examination of its bank passbooks and the vouchers returned therewith, which included the forged checks, by any one or more of its officers, other than the treasurer, the loan association was negligent in not discovering the fraud, and is therefore estopped from recovering from the bank the sum it paid out on the checks so fraudulently indorsed.


The acceptance of the balanced passbooks with the forged vouchers returned by the bank to the loan association without protest or objection as to the forgeries constituted, in the circumstances present, an account stated between the parties.

The holding by the Supreme Court in Pratt
v. Union Nat. Bank, 79 N. J. Law, 117, 75 Atl.
313, that a bank having paid a check (with
forged indorsement) cannot charge the amount
against its depositor unless it shows a right to
do so on the doctrine of estoppel or because of
some negligence chargeable to the depositor,

5. QUAERE. Does Act April 13, 1908 (P. L. p. 428), re

lating to forged checks, apply to forged in

dorsements on checks—quaere.

Appeal from Supreme Court.

Action by Pannonia Building & Loan Association against the West Side Trust Company of Newark, New Jersey. Judgment for defendant, and plaintiff appeals. Affirmed.

Harrison P. Lindabury, of Newark, for appellant.

Charles F. Herr and Frank E. Bradner, both of Newark, for respondent.

WALKER, C. This is an appeal from a judgment entered in the Supreme Court in a Cause tried before Hon. Frederic Adams, circuit court judge, without a jury, the cause having been referred to him under the statute. The trial judge made certain findings of law and fact, which were made a part of the postea and judgment record. While it is quite usual in cases tried before a judge without a jury to submit requests for findings of law and fact, that appears not to have been done in this case. Any findings requested herein must have been made in the Oral arguments presented to the trial judge, who found for the defendant and against the plaintiff.

[1] In the state of the law as it existed prior to the amendment of the Practice Act approved March 15, 1916 (P. L. p. 109), the judgment before us would not be reviewable for want of objections taken in the Court below. In Blanchard v. Beveridge, 86 N. J. Law, 561, 92 Atl. 384, this court held that when a cause is submitted to a trial court on an agreed state of facts it is incumbent upon the parties to request the court to make a finding, or findings, of law or fact, or law and fact, and to except or object to an adverse finding, when made, in order to lay the foundation for a review on appeal. See, also, Webster v. Freeholders, of Hudson, 86 N. J. Law, 256, 90 Atl. 1110. All of the grounds of appeal in this case are directed to the findings of the Court.

We apprehend that when a cause was submitted to a trial judge for his determination on the law and the facts prior to the passage of the act of 1916, if he filed a memorandum of his decision in the office of the clerk of the court instead of sending for Counsel and

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