YOUNG v. TAYLOR et al.

such person or persons for such consideration and on such terms and conditions as he shall

(Court of Chancery of New Jersey. June 24, see fit," with power to execute a conveyance.

1914.)

1. MORTGAGES (8 78*)-MISREPRESENTATIONPARTIES CONFIDENTIAL RELATIONS.

A broker authorized to sell land to net the owner $1,000, who arbitrarily fixed the price at $1,600, and on receipt of $1,000 from the purchaser agreed to obtain or himself furnish the difference and did so on the security of the purchaser's mortgage for $600, was the agent of the owner and not of the purchaser, as to whom there was no fiduciary relationship which required of the broker a full and truthful disclosure of the transaction and his participation therein, so that, even if there was a misrepresentation as to the price, there was no breach of duty invalidating the mortgage.

[Ed. Note. For other cases, see Mortgages, Cent. Dig. §§ 177-181; Dec. Dig. § 78.*] 2. MORTGAGES (§ 78*)-VALIDITY-Fraud.

A broker authorized to sell property to net the owner $1,000 represented that the owner wanted $1,600, which amount the purchaser paid after seeing the premises and estimating their value, which he undertook to prove was more than $1,600, and the broker accepted a cash payment of $1,000 and took a mortgage for the $600 which he himself furnished with the purchaser's knowledge that he might do so. Held, that as the misrepresentation as to the owner's price was not material and could not have influenced the purchase, the foreclosure of the mortgage could not be resisted on the ground of fraud or want of consideration. [Ed. Note. For other cases, see Mortgages, Cent. Dig. 88 177-181; Dec. Dig. § 78.*]

Bill by Jessie Young against George J. Taylor and others. Decree advised in favor of complainant.

Clarence Garretson and Clarence E. Case, both of Somerville, for complainant. Edward P. Johnson, Jr., of Somerville, for defendants.

BACKES, V. C. This is a bill, in the common form, to foreclose a mortgage, which is resisted on the ground that the mortgage was fraudulently procured and given without consideration.

The owner's instructions to Van Fleet were that he was to receive $1,000 net, and that sum he got. Van Fleet had apparently spoken to Sammis about selling the property, because it appears that in the event of a sale Van Fleet was to get $25 for his trouble. The price of $1,800, afterwards reduced to $1,600, offered by Sammis to Taylor, was arbitrarily fixed by Sammis, of which Van Fleet was not informed until the bargain was struck with Taylor.

When Taylor's check and letter were received, Sammis promptly showed them to Van Fleet and received his approval. Van Fleet, as attorney in fact, executed a deed to Taylor, who then paid the balance of the consideration and gave the disputed mortgage of $600 to Sammis, in the belief that the owner's price was $1,600 and that Sammis was advancing the mortgage sum. The mortgage was later assigned to the complainant.

resented the owner. He was in no sense the [1, 2] In negotiating the sale Sammis repagent of Taylor. With him he dealt at arm's length. There was not, as claimed, a fiduciary relation, which required of Sammis a full and truthful disclosure to Taylor of the transaction and of his participation in it; and consequently, in this aspect, there was no breach of duty, even though there was J. Eq. (6 Buch.) 306, 74 Atl. 473. The repmisrepresentation. Rogers v. Genung, 76 N. resentation that the owner wanted $1,800 was untrue, but it was not material and did not influence the purchase. Cooper v. Lovering, 106 Mass. 77; Hauk v. Brownell, 120 Ill. 161, 11 N. E. 416; Uhler v. Semple, 20 N. J. Eq. (5 C. E. Gr.) 288.

Suppose that Sammis, in reply to Taylor's query as to the price, had said that it was $1,800. Would this not have conveyed the same meaning, viz., that the owner wanted that sum, and would such a statement be reThe mortgagor, Taylor, desiring to buy a garded as a material misrepresentation? small farm, called upon, and was shown the Taylor saw the premises before fixing his mortgaged premises by one Sammis, a real figure of $1,600. It was his estimation of estate agent, who had them on his books the value, and he does not now claim that for sale. Sammis told Taylor that the own- the property was not worth the amount he er wanted $1,800, and, being asked whether paid. In fact, the complainant at the hearthey could not be bought for less, replied ing offered to prove that it was worth what that he did not know. A tentative offer of he gave for it. How then has Taylor been $1,600 was made, and within a few days Tay- harmed? The representation that Sammis lor mailed to Sammis a check inclosed in a furnished the needed balance of the purchase letter in which he stated that it was "for price, if we should regard it as false, was contract to purchase three and one-half acres merely incidental and stands on the same of ground, the two-story house, barn, etc., footing. Candidly and frankly Sammis relocated at Readington, New Jersey, for the ported the bargain to the owner's represensum of sixteen hundred dollars ($1,600)." tative Van Fleet. By its acceptance it beTaylor had but $1,000 in cash, and Sammis came the contract of Van Dorn's and operatagreed to obtain, or himself furnish, the dif- ed as an equitable conversion of the land ference. The owner of the place was one into personalty-a chose in action-the beVan Dorn, who, living in Oregon, had by longing of Van Dorn, and subject to his diswritten power of attorney commissioned his posal. $600 of it he passed to Sammis for brother-in-law, Van Fleet, to make sale "to his services and outlay. Taylor's mortgage

to Sammis was given in acknowledgment of, in its cotton waste factory at Vineland, which his debt to Van Dorn, and the fact that Sam- bills were duly paid and receipted. It was mis did not actually hand over, in cash, to then discovered that through a mistake on Van Dorn the amount of the mortgage, is of the part of the plaintiff's chief electrician no moment. He gave his services. That the in failing to multiply the meter face readings compensation was disproportionate to these by 10, the bills so rendered and paid were services is not of Taylor's concern. Where for only one-tenth of the amount actually due in then was Taylor injured? A falsehood or by the defendant to the plaintiff. This suit fraud that does not result in legal injury is for the other nine-tenths, the same allowcan neither be made the foundation of an ance of discounts being made as would have action nor the ground of a defense. Britton been credited if the proper bills had been origv. Royal Arcanum, 46 N. J. Eq. (1 Dick.) 102, inally rendered and promptly paid, and no in18 Atl. 675, 19 Am. St. Rep. 376. In Marsh terest or penalty for delay being asked. v. Cook, 32 N. J. Eq. (5 Stew.) 262, Vice Chancellor Van Fleet said:

"I think it is safe to say that it is impossible to frame a definition of fraud which will accurately define it in all of its multitudinous forms, but I think it may be said, with equal safety, that no deception or artifice will be considered an actionable fraud, so as to be the proper subject of judicial redress, which has not been a cause of injury or prejudice to the party seeking redress. A misrepresentation or concealment, which has not been the means of producing damage or injury, is not within the cognizance of human tribunals, for they do not sit for the purpose of enforcing moral obligations or correcting unconscientious acts which are followed by no loss or damage."

I will advise a decree in favor of the complainant, with costs.

(86 N. J. L. 342)

The defense is a claim of equitable estoppel, and in substantiation of this claim it was testified by defendant's president that the amounts actually paid in response to the erroneous bills were used by the defendant in calculating its overhead expenses in arriving at the cost of its production and fixing the selling price to be charged therefor, and it was claimed that, the defendant having during this period of two years sold its product at prices based upon this cost calculation, it would now be inequitable to subject it to the loss incident to a change in its production

cost because of a mistake for which it was in no way accountable. It is claimed therefore that the court should have directed a verdict in favor of the defendant.

The difficulty with this claim is that, quite apart from the rather indefinite and general MAYOR AND COUNCIL OF BOROUGH OF character of this evidence, the president of VINELAND v. FOWLER WASTE

MFG. CO.

the defendant company also testified that they sold their products for all that they

(Court of Errors and Appeals of New Jersey. could get for them, and that the defendant

June 15, 1914.)

(Syllabus by the Court.) ESTOPPEL (§ 87*) — EQUITABLE ESTOPPEL WHAT CONSTITUTES.

The doctrine of equitable estoppel is essentially one of "good conscience." Where, therefore, one with convenient opportunity to ascertain the real facts by the exercise of reasonable diligence, neglects to do so, he will not be permitted to defeat another's just rights by urging an equitable estoppel based upon his having acted to his disadvantage in reliance upon that other's innocently mistaken representation regarding those facts, where such representation was not made for the purpose of inducing him so to act.

[Ed. Note. For other cases, see Estoppel, Cent. Dig. §§ 230-234; Dec. Dig. § 87.*]

Appeal from Supreme Court.

Action by the Mayor and Council of the Borough of Vineland against the Fowler Waste Manufacturing Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Albert W. Sanson, of Philadelphia, Pa. (C. V. D. Joline, of Camden, on the brief), for appellant. Henry S. Alvord, of Vineland, for appellee.

WHITE, J. The plaintiff appellee during a period of two years rendered monthly bills to the defendant appellant for electric current supplied the latter for motive power, etc.,

company was at the end of the period involved in charge of a committee of its creditors; so that it became a jury question to decide whether the prices at which defendant sold its products were in fact affected at all by plaintiff's error. This question was submitted to the jury by the learned trial judge, and in this we think there was no error.

its

It is urged that this view conflicts with that laid down by the Supreme Court in Central R. R. Co. v. MacCartney, 68 N. J. Law, 165, 52 Atl. 575, but this is not so. In that case a common carrier released freight lien upon the goods carried by delivering them to the consignee with a freight bill, which through error was for less than it should have been. The consignee deducted the amount of the freight bill so rendered from the price it had agreed to pay the consignor and remitted to him the remainder. The carrier then discovered its error and claimed additional freight charges from the consignee. The court held there was an equitable estoppel, because the consignee not being liable for the cost of shipment as such (that being the obligation of the consignor), but only upon his implied contract to pay resulting from the release of the carrier's lien at his request, it would be inequitable to impose upon him a loss resulting from an error of the carrier about which he neither

knew nor had convenient opportunity to | ready means of acquiring such knowledge." 16 know, and upon the faith of which he had Cyc. 738 and 741, and numerous cases there settled with the consignor. cited.

The evidence showed that the meter, by which the consumption of current was measured, while the property of the plaintiff, was on the defendant company's premises and open to free inspection by their officers and employés, and there was some testimony that no particular technical knowledge was required to read it. There was evidence, therefore, justifying the instruction complained of, and we think that it expressed the true principle under the circumstances involved. "As a corollary to the proposition that the party setting up an estoppel must have acted It is further urged that the learned trial in reliance upon the conduct or representations judge erred in permitting, over objections, of the party sought to be estopped, it is as a certain questions to be asked on cross-examgeneral rule essential that the former should ination, tending to show the amount of the not only have been destitute of knowledge of the real facts as to the matter in controversy, but defendant company's authorized and out

CONGREGATION-NOTICE-IRREGULARITY.

tion of a religious denomination held pursuA meeting of the members of a congregaant to a call by a member at the close of the morning service, to take place in the evening, and not called in the usual manner by the consistory, is irregular, and the action taken at the meeting is not binding on any one except possibly those present and acting.

[Ed. Note. For other cases, see Religious Societies, Cent. Dig. §§ 32-46; Dec. Dig. § 8.*]

5. RELIGIOUS SOCIETIES (§ 8*)—MEETINGS OF CONGREGATION-NOTICE-IRREGULARITY.

profits, or, as it turned out, the absence of | 4. RELIGIOUS SOCIETIES (§ 8*)-MEETINGS OF them, and the volume of its business and the salary paid its president during the period in question, and that at the end of that period it was in charge of a committee of its creditors. We do not think there was injurious error in these rulings. The important fact involved in the estoppel claim was that defendant would have established and successfully charged higher prices for its commodities than it did establish and charge if the error complained of had not occurred. All of the matters inquired about in the questions objected to tended to show an actual condition of affairs making it most unlikely that defendant would have done anything of the kind, but that, on the contrary, if it could have sold its products at a higher price than it did, there were ample and much more urgent reasons for so doing than the one which it is now claimed would, if it had known of it, have caused it to do so. The fact the defendant was unable to successfully raise its prices high enough to meet the demands of the big reasons for so doing which it knew did exist was a fair ground from which a jury might properly conclude that its failure to raise these prices was not because of its ignorance of the small reason of which it did not know. We think the evidence was properly admitted.

The judgment is affirmed.

(82 N. J. Eq. 155, 612)

SCHILSTRA et al. v. VAN DEN HEUVEL

et al.

A meeting of the members of a congregation of a religious denomination held pursuant to notice signed by nine members, and not called served personally or by leaving copies at the in the usual manner by the consistory, and residences of the members on the day before the meeting, is not a valid meeting, and any action taken thereat is not valid. Societies, Cent. Dig. §§ 32-46; Dec. Dig. § [Ed. Note.-For other cases, see Religious 8.*]

6. RELIGIOUS SOCIETIES (§ 12*)-DENOMINAREGULATIONS DECISIONS

TIONS

CHURCH BODIES.

OF

tion, to which a church society belongs, require Where the rules of a religious denominathe submission of disputes to a double consistory composed of the consistory of the soci ety in which the differences exist and that of an adjoining church, and authorize an appeal to higher judicatories, the decision of the highest judicatory is final, under the Religious Societies Act, 18 (3 Comp. St. 1910, p. 4316).

[Ed. Note.-For other cases, see Religious Societies, Cent. Dig. §§ 87-98; Dec. Dig. § 12.*]

7. RELIGIOUS SOCIETIES (§ 23*)-RELIGIOUS DENOMINATIONS-FACTIONS IN RELIGIOUS SOCIETIES-PROPERTY RIGHTS.

A religious society, which is affiliated with other religious societies forming a denomina

(Court of Errors and Appeals of New Jersey. tion for their mutual benefit, is subject to the

March 16, 1914.)

1. JUDGMENT (§ 644*)-RES JUDICATA.
A judgment of the Supreme Court, ren-
dered in proceedings directed by the vice chan-
cellor pending a motion for a preliminary in-
junction, is not res judicata of the rights of
the parties to the suit, for the decision of the
Supreme Court is merely incidental and not
reviewable in the appellate courts.

[Ed. Note.-For other cases, see Judgment,
Cent. Dig. § 1157; Dec. Dig. § 644.*]
2. JUDGMENT (§ 645*)-RES JUDICATA-Par-
TIES CONCluded.

A judgment at law is not res judicata in a suit in equity, where the parties are not identical, and the issues are much broader and more various than those litigated at law.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. § 1158; Dec. Dig. § 645.*] 3. JUDGMENT (§ 713*)-RES JUDICATA.

A judgment in a prior action operates as an estoppel only as to those matters in issue or points controverted, on the determination of which a finding or verdict was rendered; and, where it is sought to apply the estoppel of a judgment in one cause of action to matters arising on a different cause of action, the inquiry is as to the points actually litigated and determined in the prior action, and not what might have been litigated and determined.

[Ed. Note. For other cases, see Judgment, Cent. Dig. $$ 1063, 1066, 1099. 1234-1237, 1239, 1241, 1247; Dec. Dig. § 713.*]

higher judicatories of the denomination, and its property and temporalities are held by it under an obligation to continue the affiliation until terminated by mutual consent, and a secession by a faction, however, large, may not take the church property, so long as there is a loyal body which is recognized by the superior judicatory of the denomination.

[Ed. Note.-For other cases, see Religious Societies, Cent. Dig. §§ 147-153; Dec. Dig. § 23.*]

8. QUO WARRANTO (§ 20*)-RELIGIOUS SOCIETIES ( 14*)-TITLE TO OFFICE-JURISDICTION.

The only tribunal in which the right to an office in a religious society belonging to a relig ious denomination can be judicially determined is the Supreme Court, and the remedy is by

quo warranto.

[Ed. Note. For other cases, see Quo Warranto, Cent. Dig. § 21; Dec. Dig. 8 20;* Religious Societies, Cent. Dig. 88 100-102; Dec. Dig. § 14.*]

Appeal from Court of Chancery.

Suit by John Schilstra and others against Arie J. Van Den Heuvel and others, for the regulation of the affairs of the Northside Christian Reformed Church of Passaic on the ground of a misappropriation of property. From a decree granting relief to comAffirmed in plainants, defendants appeal. part, and reversed in part.

The following is the opinion of Howell, V. C.:

the church from the denomination known as

with a discretionary motion, from the decision of which there could be no appeal, and decidthe court, might be entertained again the next ing against a motion which, in the discretion of day. Such a situation arose in the case of Selz v. Presburger, 49 N. J. Law, 396, 8 Atl. 118. There the defendant was arrested on a capias issued on the order of a Supreme Court commissioner, who adjudged that the defendant had fraudulently contracted the debt sued for and had disposed of his property with intent to defraud his creditors. Subsequently he applied to discharge upon the ground that the affidavits one of the justices of the Supreme Court for his on which the commissioner had made his order thereupon he sued out a writ of habeas corwere insufficient. This motion was refused;

The bill in this case is filed for the regulation of the affairs of the Northside Christian Reformed Church of Passaic, upon the ground that there was a misappropriation of the property and temporalities of the church society the same having been diverted by a faction of the Christian Reformed Church in America. The bill is filed by five individuals, who bring the suit, not only on their own behalf, but on behalf of all members of the Northside Christian Reformed Church, who are similarly situated. It alleges in short that there is a schism in the church, and that a faction represented by the defendants has seceded therefrom and joined the Reformed Church in Amer-pus;, the return showing that he was detained ica: that the seceders have obtained possession of the church property, and without the consent of the complainants and their adherents are attempting to carry the church prop erty with them and place it under the control of the Reformed Church in America. They claim that this is being attempted, not only against the substantive rules of law regulating affairs of religious societies, but that it has been done and is being done in an unlawful and irregular manner, and that the result is that the defendants committed a breach of their trust as trustees of the Northside congregation in despoiling it of its property. They seek a restoration of the property to the denomination to which it originally belonged, and to enjoin the defendants from intermeddling with it or its possession or use as one of the churches affiliated with the Christian Reformed Church of America.

The facts, so far as they relate to the view now taken of the case, will fully appear here

after.

[1] There is an objection raised at the outset of the case, namely, that the very point presented here was once litigated in the Supreme Court and decided in favor of the defendants, and hence is res judicata. After the bill had been filed, and on a motion for preliminary injunction, the Vice Chancellor, before whom the motion was made, directed that proceedings be taken at law, for the purpose of testing the right of the defendants to hold the offices of elder and deacon, and consequently the office of trustee; he in the meantime advising an order which has preserved the status quo until the final hearing. The proceeding so suggested was taken. It took the form of an order against Martinus J. Bast, John Groenhoff, John Zylstra, Frank E. Ruiter, Martinus Haakmeester, and Peter H. Vanderplatt on the relation of Nick Hornstra, Herbert Priss, John Shilstra, Leonard Wynbeek, and William S. Pontier, requiring them to show cause why a writ of quo warranto should not issue to inquire by what warrant or authority they and each of them claimed to have, use, and enjoy the offices, liberties, privileges, and franchises of trustees and members of the Consistory and elders and deacons of the Northside Christian Reformed Church of Passaic, and why leave to file an information therein should not be granted, and the respondents required to appear and plead or demur thereto. Depositions were taken, and on the argument the rule to show cause was discharged, with costs. In the opinion that was filed the court stated that the title of the defendants to their office was unimpeachable; that the meetings of January 7 and January 9, 1912, at which it was voted to secede from the Christian Reformed Church, were regularly called and held; that the right to secede existed; and that the case in all its essential features was akin to the case of Pulis v. Iserman, 71 N. J. Law, 408, 58 Atl. 554. The opinion proceeds upon the ground that the granting of the motion or the refusal of it is in its discretion; it consequently was dealing

by virtue of the capias, he prayed his discharge upon the same ground as that upon which he had based his application to the justice of the the preliminary objection that the determinaSupreme Court. The plaintiffs met him with tion of the justice was conclusive, but Mr. Justhe doctrine of res judicata is not applicable to tice Dixon held that it was not. He held that summary determinations by a subordinate tribunal, which are merely incidental, the decision of which, not being entered upon the record, cannot be reviewed in the appellate courts. See, also, Pulis v. Iserman, 71 N. J. Law, 413, 58 Atl. 554.

Where the effect of a judgment upon a motion is to absolutely settle rights of parties, and a review can be had, there is no doubt but that the judgment would be res judicata. Such was the opinion of Vice Chancellor Pitney in the case of West New York Silk Mill Co. v. Laubsch, 53 N. J. Eq. 65, 30 Atl. 814. There a motion was heard by the Hudson county circuit court to set off one judgment against another. It was refused, with costs, and one of the parties subsequently filed a bill in chancery for the same purpose. The objection of res judicata was raised; the Vice Chancellor held that the former judgment of the circuit court was binding, and that portion of the relief which was prayed in the bill was denied; but it will be observed that in that case the original motion dealt with the rights of the parties finally, and that there was a right of review. The doctrine of the Salz Case is upheld by the Supreme Court of Colorado in Rockwell v. District Court, 17 Colo. 118, 29 Pac. 454, 31 Am. St. Rep. 265. In Scherff v. Missouri Pacific Railway Company, 81 Tex. 471, 17 S. W. 39, 26 Am. St. Rep. 828, it was held that a judgment within the authority of res judicata must be a definite judgment of condemnation or dismissal upon the merits of the case.

[2] This would seem to be dispositive of the point upon reason and authority; but it will be likewise observed that the parties to the common-law litigation are slightly different from the parties in this suit, and that the issues here are much broader and more various than those presented by the Supreme Court record. There the sole issue was whether quo warranto proceedings should be instituted to test the title of the defendants to the offices of elders and deacons or members of the Consistory of the Northside Church. Conceding that they are, the bill in this case raises the further question as to whether the defendants and a faction of the congregation, upon the facts presented, have a right to secede from the Christian Reformed Church and join the Reformed Church in America, and take the church property and temporalities with them. A mere statement of these differences is a demonstration that the doctrine of res judicata cannot apply to this case. The argument, however, has the support of authority.

It was said by Mr. Justice Field, in the case of Cromwell v. County of Sac, 94 U. S. 351,