On appeal from the Cape May County Circuit Court.
For the respondents, George A. Bourgeois and Samuel M. Garfinkle.
For the appellants, Joseph Thompson and Walter Hanstein.
The opinion of the court was delivered by
KAYS, J. This is an appeal from a judgment rendered in the New Jersey Supreme Court in favor of the plaintiffs in [108 NJL Page 374] the sum of $3,009 and costs. The case was tried at the Cape May Circuit before his honor, Judge Sooy, Circuit Court judge, and a jury, to whom it was referred for trial. The case arose out of an agreement to purchase certain real estate sold at public auction under stated conditions in the city of Wildwood, Cape May county, wherein the plaintiffs below were the vendees and the defendants, the vendors. Under the conditions of sale the vendees paid down on account of the purchase price the sum of $2,300. The said $2,300 represented ten per centum of the agreed purchase price. At the time of the sale the lots in question were owned by the estate of Ruric N. Adams and Charles H. Shetzline as tenants in common. The estate of the said Ruric N. Adams was the owner of an equal undivided two-thirds interest and the said Shetzline owned the other undivided one-third interest. This sale was held by John A. Ackley & Sons, auctioneers, on August 17th, 1925. Under the conditions of the sale the deed was to be delivered on or before October 1st, 1925, at the office of an attorney-at-law of this state, Robert Bright, North Wildwood, New Jersey, at which time an additional forty per centum of the purchase-money was to be paid and a purchase-money mortgage given for the balance. On said October 1st, the plaintiffs below were prepared and ready to make settlement. On that day, however, a letter was received by Edward Whitehill from the said Robert Bright which contained a statement to the effect that he did not believe the sale would go through for the reason that the property was in litigation in the Court of Chancery; that Mr. Charles H. Shetzline, who owned a third interest in the property, had filed a bill sometime in June for the partition thereof and that the Chancery proceedings had priority over the sale and further stated as follows: "I do not see anything but what the return of the money to you would be the best method for you and your associates. Mrs. Adams did not have the sanction of her co-executor in listing the property. Mr. Shetzline, the one-third owner, is not bound by the listing or sale, not having signed up nor agreed thereto."
This letter was dated September 30th, 1925. After receipt of this letter the plaintiffs below did not attend at Mr. Bright's office and tender the money. In the year 1927, Mr. Samuel F. Garfinkle, an attorney, called on Elizabeth B. Adams and made demand for the return of the deposit money. Mrs. Adams refused to return the money which resulted in the suit and judgment resulting therefrom. A rule to show cause was allowed on the first trial and the verdict set aside as contrary to the evidence. The re-trial resulted in the judgment above mentioned, from which this appeal is taken.
The first ground of appeal argued by appellant is that the court erred in admitting in evidence the letter written by the said Robert Bright to Edward Whitehill, the purport of which is above set forth. The admission of this evidence was objected to on the ground that the authority of Robert Bright to write the same was not proven. We are of the opinion that such was not the case. Bright, himself, testified that he was authorized by Mrs. Adams to take charge of the settlement which was to take place on October 1st. It was admitted that a suit for partition was pending in the Court of Chancery at the time. It therefore appears that this settlement was in the hands of Mr. Bright and that he found an obstacle in existence which would prevent such settlement and so advised the purchasers. As a result the settlement did not take place and none of the parties appeared.
Not only was this letter available to the plaintiffs as evidence which would excuse them from a tender of payment but the admission of Shetzline that he had a one-third interest in the property was also available to the plaintiffs in an effort to show that a tender of the purchase price was not necessary. These two points were at least evidence from which a jury might conclude that the grantors were unable to convey a good and sufficient title to the vendees. Appellant contends that a nonsuit should have been granted for the reasons above set forth. However, the contents of the letter and the admission that Shetzline owned an undivided
interest in the property, constitute evidence from which a jury might conclude that the vendees were excused from a tender of the purchase price and that the vendors were unable to convey a good and sufficient title.
It is next argued that it was error to exclude certain questions asked the witness Bright as to the attitude of Mr. Shetzline about signing a deed. A careful examination of the testimony leads us to the conclusion that these questions were not proper cross-examination. The first question was, "did you know that Shetzline was unwilling to sign that deed?" the second question, "did Mr. Shetzline ever refuse to sign a deed?" and four other questions of like effect. The court sustained the objection to these questions and said, "I sustain the objection on the ground that you are not cross-examining on anything introduced in the direct testimony or in that letter." We think this was a correct ruling, as we find no direct examination bearing on this point.
It is also argued that certain testimony given by another member of the bar, John McMullin, should not have been excluded. McMullin, who appeared to be the attorney of Shetzline, was asked whether Shetzline was willing to sign a deed for the property in question. The answers to such questions would be conclusions only which the witness himself might draw. A witness cannot state over objections his opinion as to the thoughts or purposes of another. They were, therefore, properly excluded by the court. In this connection he was asked, "what I want to know is did he refuse to sign a deed for this property?" Objection was made to the question but the question was not answered nor was there an exception taken to the ruling of the court. It, therefore, will not be considered here. McMullin was then ...