CASES

ADJUDGED IN

THE COURT OF CHANCERY

OF

THE STATE OF NEW JERSEY.

FEBRUARY TERM, 1884.

THEODORE RUNYON, ESQ., CHANCELLOR.

ABRAHAM V. VAN FLEET AND JOHN T. BIRD, ESQS., VICE-CHANCELLORS.

IRA M. HARRISON, administrator,

V.

JOSEPH T. FARRINGTON.

If a bill for an account filed by an administrator against the surviving partner of his intestate anticipates the defence of an account stated and charges fraud therein, the defendant, if he sets up an account stated, must also traverse the alleged fraud.

Bill for relief. On plea and demurrer thereto.

Mr. J. W. Taylor, for demurrant.

Mr. S. C. Mount, contra.

THE CHANCELLOR.

Harrison v. Farrington.

The bill prays an account of the dealings and transactions between the defendant and the complainant's intestate (they were partners in business) during the lifetime of the latter, and after his death up to the 1st of May, 1876, and that the defendant may be decreed to pay the amount due. It states that the complainant applied to the defendant for a statement of the assets and liabilities of the firm, and that the latter gave him one which showed a balance in favor of his intestate's estate, and that confiding in the defendant's representations, which he says were false in certain important particulars which he specifies, he accepted that sum; whereas, he insists, he ought to have had a much larger one. The defendant has pleaded an account stated and has answered in support of the plea. The complainant has demurred to the plea.

The bill, it will have been seen, anticipates the defence of an account stated, and to it replies affirmatively by charging fraud. The defendant, therefore, if he wishes to plead an account stated, must not only set up the account but must traverse also, in the plea, the anticipatory replication thereto which the bill contains, that is, the charge of fraud. Such a plea is called an anomalous one because it is partly affirmative and partly negative-affirmative in setting up the account and negative in denying the fraud. Story Eq. Pl. § 802; Lang. Eq. Pl. § 101. The plea under consideration does not negative the fraud. It avers that the account was, according to the best of the defendant's knowledge, just and true, and that the defendant furnished the complainant with facilities for examination into the accounts; but it does not traverse the charges of fraud or any of them. It must be overruled, with costs, but leave will be given to amend, provided it be done in ten days from the time of entering the order on this opinion.

New Jersey Zinc and Iron Co. v. Trotter.

THE NEW JERSEY ZINC AND IRON COMPANY

v.

CHARLES W. TROTTER et al.

The complainant claims the franklinite ore in certain land known as the northerly half of Mine Hill, under deeds made, one in 1848 and the other about a year afterwards. The defendant Trotter also claims that ore as lessee of a person who claims under a deed of the same grantor made in 1848. The complainant's deeds do not include the land in question in the description, though it says it was intended that the description should embrace those premises, and the bill is filed for rectification of the description so as to include the premises in dispute. The complainant, and those under whom it claims, had possession of the land from 1848 up to September, 1882, when Trotter took possession and fenced it out. In 1881 he recovered damages against the complainant's grantor in a federal court, in trespass, for taking franklinite from the property, and shortly afterward the complainant's grantor filed a bill in a federal court for rectification of the description, and applied for an injunction to restrain Trotter from mining the franklinite, which was denied. On motion for injunction in this suit to restrain Trotter from mining-Held, that an injunction should be allowed to preserve the property in question pendente lite. Also that the complainant was not disentitled to relief by laches in applying for the reformation of the description, notwithstanding the error was known as early as 1853, since its right was not questioned until Trotter obtained his lease, which was in 1879.

Bill for relief (to correct deeds &c.). On motion for interlocutory injunction.

Mr. T. N. McCarter (for complainant), for the motion.

Mr. R. Wayne Parker and Mr. Cortlandt Parker (for Trotter), and Mr. C. D. Thompson and Mr. George Northrop, of Philadelphia (for A. Heckscher), contra.

THE CHANCELLOR.

The controversy between the parties is as to the title to what is designated as the westerly mine, lode, vein or bed of franklinite ore in and upon the northerly half of Mine Hill, in Sussex

New Jersey Zine and Iron Co. v. Trotter.

county. The complainant claims it under a deed dated March 10th, 1848, given by Samuel Fowler to the Sussex Zinc and Copper Mining and Manufacturing Company, and another deed, confirmatory thereof, given by Fowler to that company about a year afterwards. The defendants are James L. Curtis, sole surviving trustee of the Franklinite Mining Company, who, when the bill was filed, claimed to hold (subject to the hereinaftermentioned lease to Trotter) the legal title to the property in dispute by virtue of a deed dated December 30th, 1850, from Fowler to him and Daniel H. Curtis (now deceased) as trustees for that company; the Franklinite Mining Company and the Franklinite Steel and Zinc Company, which latter company claimed, when the bill was filed, to be the equitable owner of the rights of the Franklinite Mining Company in the property; Charles W. Trotter, who claims under a lease of the property for fifteen years from its date, April 10th, 1879, from James L. Curtis, as trustee for the Franklinite Mining Company, and August Heckscher, recently admitted as a defendant, who claims to own, by virtue of a conveyance since this suit was begun, all the title of James L. Curtis, surviving trustee of the Franklinite Mining Company, and all the title of the Franklinite Steel and Zinc Company. The main object of the suit is to correct the description of the land in the two deeds from Fowler to the Sussex Zinc and Copper Mining and Manufacturing Company, the complainant insisting that it is erroneous through mistake of the parties to the instruments. The description does not enclose the land which the complainant alleges the parties intended to embrace in it, but, on the contrary, will not, in the language of the surveyors, "close" at all. The complainant alleges that it was the intention of the parties to the deeds to convey by that description the franklinite in the northerly half of Mine Hill. The defendants deny this, and, on the other hand, claim the franklinite in and on that half of Mine Hill under the before-mentioned deed from Fowler to the Curtises, as trustees, which grants all the ore called franklinite, and all other ores or metals in and on certain premises in which Mine Hill is included, not granted by Fowler to the Sussex Zinc and Copper Mining and

New Jersey Zinc and Iron Co. v. Trotter.

Manufacturing Company by the before-mentioned two deeds, and another of the same date with the first-mentioned thereof, March 10th, 1848, by which he conveyed all the zinc, copper, lead, silver and gold ores, and all other metals, or ores containing metals, except the metal or ore called franklinite, and iron ore when it exists separate from the zinc, in certain premises, including Mine Hill. It will be seen, from what has been said, that the dispute between the parties is as to whether the complainant's conveyances of franklinite include that which is in or on the northerly half of Mine Hill or not. The complainant's immediate predecessor in the title which it claims-the New Jersey Zinc Company-was sued by Trotter in the United States circuit court for the district of New Jersey in an action of trespass to recover damages for taking away franklinite subsequently to the beginning of his term (he claiming under his lease), and the action resulted in a judgment in his favor in 1881. The defendant in that suit was unable to stand on its title under the deeds from Fowler, the jury not being able to find that they covered the locus in quo. Subsequently the New Jersey Zinc Company filed a bill in the United States circuit court for the eastern district of New York for a reformation of those deeds and a deed from the Sussex Zinc and Copper Mining and Manufacturing Company to it, dated in 1852, for the franklinite which it is claimed it was the intention of the parties to convey by the deeds from Fowler to the Sussex Zinc and Copper Mining and Manufacturing Company for franklinite. An application for an injunction upon that bill was denied on the ground. (among others) that the matter in that suit was res adjudicata— that the complainant therein was concluded by the before-mentioned finding of the jury in the suit at law. The bill in this case seeks to rectify the description of the land in those deeds. It alleges that by mistake the description in the deeds from Fowler was so made as not to describe the premises which the grantor intended to describe. When the bill was filed the complainant was in possession of the premises in dispute, and it and those under whom it claimed had been in possession of the vein or bed from the time of the first conveyance by Fowler, which