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Mesce Loan Co. v. Marinaro

Decided: August 6, 1936.

MESCE LOAN COMPANY, A CORPORATION, PLAINTIFF-APPELLANT,
v.
THEODOLINDA MARINARO AND JOHN P. MARINARO, DEFENDANTS-RESPONDENTS



On appeal from a judgment of the District Court of the city of Orange.

For the appellant, Simon M. Seley.

For the respondents, William Ryan (Samuel D. Bozza, of counsel).

Before Justices Bodine and Heher.

Heher

The opinion of the court was delivered by

HEHER, J. Plaintiff sued upon a promissory note made by defendant Theodolinda Marinaro, and endorsed by John P. Marinaro, a member of the bar of this state. The defense interposed was that the obligation was outlawed by the statute of limitations; and the reply was that payments had been made upon the note within the period of limitation, and the asserted bar of the statute therefore did not exist. At least two of these payments, so the plaintiff claimed, were in the form of credits upon the obligation for earned fees for legal services rendered by the lawyer defendant. The point of inquiry therefore is whether these credits were given under circumstances connoting voluntary payments by the endorser, with the intent that they should be applied to the obligation, so as to constitute an acknowledgment of the debt within the prescribed period of limitation, and thus to toll the statute.

The District Court judge, sitting without a jury, rendered judgment for the defendants, presumably rested upon a finding

that no payments were in fact made upon the note within the period ordained by the statute of limitations. The plaintiff appeals.

The sole specification of error is the overruling of a question propounded by appellant's counsel to its president, Mesce, designed to elicit evidence of an asserted contract between it and the respondent John P. Marinaro in a litigated matter referred to as the "Romano Case," whereby the fees earned by John P. were "fixed in advance and were to be credited to the Marinaro account," and of an entry on its books crediting John P. Marinaro "on the note" for the services thus rendered. The question was rejected on the ground that thereby the appellant "sought to discredit Marinaro," the court "regarded the plaintiff bound by Marinaro's testimony."

In so ruling, the judge fell into palpable error. Appellant called John P. as its own witness, and interrogated him respecting his fees for services rendered in two actions instituted in the East Orange District Court against Romano and another, one Bruce. While admitting he had not billed his client for the services thus given, even though a relatively long period had elapsed, he denied that his fee had "been agreed upon before the case was tried with the understanding that his fee in each case would be credited on his note." Appellant was not bound by this reply in the sense that the evidence thus given was not subject to contradiction. It is the established rule in this state that while a party calling a witness will not be permitted afterward to impeach his general reputation for truth or veracity, by general evidence tending to show him to be unworthy of belief, he is not precluded from offering, in proof of any particular fact, competent testimony in direct contradiction to that given by the witness so called. Fox v. Forty-four Cigar Co., 90 N.J.L. 483; Schreiber v. Public Service Railway Co., 89 Id. 183; Ingersoll v. English, 66 Id. 463.

Respondents, acknowledging the authority of these cases and the pertinency of the principle therein laid down, point out that in each the ruling was prejudicial "on the merits," while in the ...


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