On appeal from the former Court of Chancery.
For affirmance -- Chief Justice Vanderbilt, and Justices Case and Burling. For reversal -- Justices Heher and Wachenfeld. The opinion of the court was delivered by Case, J.
[4 NJ Page 537] The appeal is by the defendant, Fred Eberhard, Jr., from a decree nisi of the former Court of Chancery which, on the wife's petition, awarded her a decree of divorce on the ground of adultery and, on the husband's counterclaim and the wife's cross-petition, adjudicated certain property rights between the parties. The petition charged guilt with Mrs. Viola G. Harris "at various times between January 1, 1944,
and January 1, 1946, and at various places in the States of New Jersey, New York and Pennsylvania and particularly in and around Vernon, New Jersey, during the months of November and December, 1945." Mrs. Harris did not intervene, but she testified in the cause. The court below found that adultery was committed at Sleepy Valley Inn, near Warwick, New York, a few miles from Vernon, New Jersey, on a Saturday night in October of 1945.
As to the divorce: -- The question of inclination is not seriously argued for the defense. The evidence of it is so overwhelming that we shall not discuss the proofs thereon except incidentally as occasion may arise with respect to opportunity. The outstanding incident upon which the finding of opportunity was based centered at a small hotel and eating house known as Sleepy Valley Inn, located in New York near the town of Warwick and eight or ten miles from the town of Vernon, New Jersey.
In the early fall of 1945 Eberhard made inquiry at the Lockwood Agency, a real estate office at Newton, New Jersey, looking toward the purchase of land in Sussex County, and was referred to Louis P. Nash, who maintained a subagency at his home in the town of Vernon. In making his initial call upon Nash, Eberhard was alone, but on later visits he was accompanied by Mrs. Harris. Nash interested Eberhard in a portion of the acreage owned by Grant D. Sisco, then township clerk of Vernon Township, and took Eberhard, and later Eberhard and Mrs. Harris, to see Sisco. The testimony of Mr. and Mrs. Nash and of Mr. Sisco and his daughter Harriet definitely identify Mrs. Harris as, repeatedly, a companion of Eberhard in that vicinity. Shortly after Eberhard's first visit, Nash telephoned to him and made an appointment for twelve o'clock of the following Saturday and asked him to bring Mrs. Eberhard and have lunch at the Nash home. Eberhard came, accompanied by Mrs. Harris. Mrs. Harris was not introduced to the Nashes, but they, having asked the defendant to bring his wife with him, assumed that the woman was his wife and addressed her then and throughout their
subsequent interviews as Mrs. Eberhard. That was, of course, in Mrs. Harris' presence and hearing and was in the presence and hearing of Mr. Eberhard. Neither of them corrected that erroneous form of address or denied the marital relationship implicit therein. Accordingly, when Mr. Nash took Eberhard and Mrs. Harris to Sisco, he introduced them as Mr. and Mrs. Eberhard. Again there was no objection or correction. The couple accepted a form of address which is properly applied only to husband and wife and in turn were accepted by these people of Vernon as being husband and wife. Although Eberhard and Mrs. Harris deny that they were together in that vicinity on more than one occasion or that they were so addressed, their testimony is convincingly disproved by both of the Nashes and both of the Siscos, impartial and credible witnesses in whom no incentive for misstating the truth has been established.
Defendant concedes that he and Mrs. Harris went to the Nash home, met Mr. and Mrs. Nash and were their guests at luncheon; yet he insists that he did not introduce his woman companion to either of them. We are unwilling to make the incredible assumption that a man would bring a woman as his fellow luncheon guest to the home of gentle people without either introducing her or purposefully permitting his hosts to draw from the circumstances an obvious inference as to her identity. Likewise, Eberhard says that he did not introduce Mrs. Harris to Sisco. It is definitely established that Mrs. Harris did, in Eberhard's company, meet Sisco on more than one occasion; and here, too, the improbability that she would pass through those experiences without some sort of an identification gives force to the testimony by both Nash and Sisco that Nash, in Eberhard's presence, did introduce her as Mrs. Eberhard. That all puts Mrs. Harris in the posture, tolerated to the point of encouragement by herself and the defendant, of a wife to Eberhard. Both of those persons deny the premise and consistently offer no explanation. But the fact is found contra their contention, and we are brought to the conclusion that this passive holding out
of the relationship rested upon emotions which are rightfully incident only to that relationship.
The negotiations regarding the land progressed. Eberhard and Mrs. Harris, on another Saturday afternoon, were at the Nash home, and their conversation indicated that they were planning to spend the night at Sleepy Valley Inn. The next morning Sisco told Nash that the lines of the plot which Eberhard proposed to buy barred Sisco's access to his cow pasture and that he was, therefore, unwilling to sell by the description which had been mentioned. Nash, for the purpose of conveying that information, put through a telephone call to Mr. Eberhard at the Sleepy Valley Inn, and in a few minutes had Eberhard on the phone. That was sometime between ten o'clock and noon. Later in the day Eberhard and Mrs. Harris, constantly accepted by the Nashes as being Mrs. Eberhard, came to the Nash house and in the course of conversation said that they had been at the Sleepy Valley Inn, that it was a very nice place, that they liked it and that they had had a very nice breakfast. Both of them wore the clothes they had worn on the preceding day. On still another Saturday afternoon, at about dusk, Eberhard and Mrs. Harris drove up to the Sisco house. Eberhard told Sisco he would like the latter to take him around and show him the lines of the lot, that they were then on their way to New York State and would stop the next morning for the stated purpose. The car left headed in the direction of Warwick. The next morning was rainy and wet -- not a day for walking over rough land. Nevertheless at about ten or ten-thirty o'clock Mr. Eberhard and Mrs. Harris returned from the direction in which they had gone and stopped at the Sisco house. The trip over the land was not then had.
A survey of the plot was made on or about November 12th. Sisco made delivery of the deed at the bank in Hamburg on or about the 25th of November. "About November 20th, 24th," he saw Eberhard and Mrs. Harris on the premises coming down from the field toward the road. Eberhard carried a gun and wore a hunting jacket. The three talked together,
and Sisco pointed out the line between the purchased property and the land belonging to one Edward Stahily. Mrs. Eberhard, the petitioner, testified that on November 23rd and 24th her husband was away on what he had said was a hunting trip. On November 26th, after his return, she found in his hunting jacket several prophylactics or contraceptives. Those articles were not in use between the defendant and the petitioner, and they had not been in his hunting jacket a few weeks earlier when she was searching for some matches. Eberhard admits that his wife found those articles, as she testified, in his hunting jacket. He makes this weak explanation: "I don't recall where I got them. Someone might have given them to me and I stuck them in the pocket and forgot completely about them."
Eberhard caused a truckload of lumber to be delivered at the land he had purchased, and Sisco later believed that some of it was being stolen. In the effort to tell Eberhard of the theft, Sisco telephoned the office of the Star companies where Eberhard had been employed. He was told that Eberhard was no longer there and was given the suggestion that he telephone Eberhard's residence. In the meanwhile, on January 18, 1946, Eberhard and his wife had separated; Eberhard had taken up his abode elsewhere than at the former marriage domicile and had severed his relation with the Star companies. However, Sisco did call up the residence and talked with the real Mrs. Eberhard. Until that time Mrs. Eberhard had no knowledge that her husband had negotiated for or had purchased any land in Sussex County or that he, either alone or in company with Mrs. Harris, had been frequenting that locality.
When defendant learned that his wife knew about the land purchase, he went to Nash, said he was having some trouble with his wife, asked whether anybody had been up to see him, and on being answered in the negative said, "If anybody comes here, you don't know anything about it."
Petitioner and her attorney did go to that vicinity and visited Sleepy Valley Inn in the effort to obtain information
regarding the matters of late 1945 and early 1946 and particularly to get the names of the employees of the Inn during the period under inquiry. At the time of the visit by Mrs. Eberhard and her attorney, the man who operated the bar and dispensed the liquor and who had some incidental duties by reason of which he took the title of manager was one Scheible, who, however, had not been at the Inn until July of 1947. The record that answered for a register had obviously not been kept with much regard for accuracy or completeness. It bore such entries in lieu of names as "Three Featherbed Kids" and "Chick and Sally C." While the attorney was conversing with Scheible, a middle aged man and a young woman walked in with baggage and went upstairs without signing the register. The attorney asked of Scheible, "Don't they sign?" Scheible merely shrugged his shoulders; his explanation at the trial was that he is sure they must have signed later. Whether the entries mentioned above were ...