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Fidelity Union Trust Co. v. Fitzpatrick

Decided: April 25, 1946.

FIDELITY UNION TRUST COMPANY, PLAINTIFF-APPELLANT,
v.
EDWARD F. FITZPATRICK, DEFENDANT-RESPONDENT



On appeal from a judgment of the Supreme Court.

For the plaintiff-appellant, Hood, Lafferty & Emerson and Edward J. Brown.

For the defendant-respondent, Bernard P. Hughes.

Donges

The opinion of the court was delivered by

DONGES, J. This is an appeal from a judgment of the Supreme Court, entered on a directed verdict for defendant at the Essex Circuit.

The suit was for a debt originally incurred in 1929 when the defendant, Edward F. Fitzpatrick, executed a promissory note to the plaintiff-appellant, Fidelity Union Trust Company, in the sum of $34,449.50. Payments were made on the debt, and on March 20th, 1934, the note in suit was executed in the sum of $30,350. No payments on account of principal

or interest have been made directly by defendant since that time. In August, 1929, defendant pledged certain shares of stock and, in connection therewith, executed a collateral pledge agreement. This collateral dropped in value to such an extent that when it was sold by plaintiff in 1941 only $159.35 was realized therefor. This amount was applied by plaintiff to the obligation.

In 1931 and in 1932, more than six years before the commencement of suit, defendant assigned for the benefit of plaintiff, and for its protection, insurance policies in the face value of $20,000. He paid the annual premiums thereon until 1941, since which time they have been paid by plaintiff.

The suit was in two counts, one upon the note, dated March 20th, 1934, and the other upon the pledge agreement, dated August 23d, 1929. The defense was the statute of limitations, and the trial judge held that the claim was within the bar of the six year limitation and gave judgment for the defendant.

The agreement in question was signed by defendant and after his signature was appended "(L.S.)," which was part of the printed form of agreement and not in the handwriting of defendant. To the left of defendant's signature were the words, "Signed, Sealed and Delivered in the Presence of D. C. Kirk." There were no words in the body of the agreement indicating that it was a sealed instrument, such as "witness my hand and seal" or "signed, sealed and delivered," or any indication that the person signing the agreement regarded it as a sealed instrument.

The plaintiff seeks to avoid the operation of the statute on three grounds, first, that the six year limitation in the statute is not applicable because the pledge agreement contains an independent covenant to pay the indebtedness and was a sealed instrument, which would not be within the statute until sixteen years had elapsed.

Under our statute, an actual seal or wafer is no longer necessary to constitute an instrument under seal, provided there be a scroll or other device appended, R.S. 1:1-2.1, and it has been held that the lettered "L.S." are such a scroll or device. McClellan v. F.A. North Co., 14 N.J. ...


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