On appeal from Superior Court, Chancery Division.
For reversal -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Wachenfeld, Burling and Ackerson. For affirmance -- None. The opinion of the court was delivered by Burling, J.
This is an appeal by the plaintiff from a final judgment entered in the Superior Court, Chancery Division, in favor of the defendant pursuant to a motion therefor at the close of the plaintiff's case. The appeal was certified by the Supreme Court on its own motion.
The essence of the complaint is that the plaintiff entered into an oral agreement with her brother, Joseph Galante, now deceased, and the latter's wife, Anna Galante, the defendant herein, whereby the plaintiff was to sell certain land and premises owned by her and located at No. 622 South Orange
Avenue, Newark, New Jersey, and lend the proceeds from such sale to the said Joseph Galante and Anna Galante, his wife, and that such loan was to be secured by a mortgage against premises No. 630 South Orange Avenue, Newark, New Jersey, title to which premises was in the name of defendant, Anna Galante. The complaint alleges, so far as is pertinent hereto, that the plaintiff fully performed her undertaking under the agreement by executing a deed dated April 2, 1946, conveying the premises owned by her to one Patrick Cullinane and Rose, his wife, which deed had been submitted to her for execution by the said Joseph Galante and Anna, his wife, and turning over to the latter the entire proceeds of such sale, alleged to be $13,392; that despite numerous requests thereafter by the plaintiff for delivery of the mortgage papers securing the loan made by her, such papers were never forthcoming although assurances were repeatedly given by her brother, Joseph Galante, that the plaintiff was protected; that Joseph Galante died on May 22, 1949, and the defendant became the administratrix of his estate; and further alleges that demands thereafter made upon the defendant for delivery of a bond and mortgage in accordance with the agreement were unavailing. The relief demanded in the complaint was that the defendant, individually and as administratrix of her husband's estate, account for the money so obtained and execute a bond secured by mortgage against No. 630 South Orange Avenue, Newark, New Jersey, in accordance with the oral contract; that the defendant pay the plaintiff the sum due her and that the amount be impressed as a lien upon said lands and premises; that a lien be impressed for the amount found to be due upon the assets of Joseph's estate and upon the property of the defendant; that the defendant be restrained from disposing of the said lands and premises standing in her name and of the assets of the estate; and for such further or other relief as might be just and equitable.
The defendant in her answer, inter alia, denied the existence of any agreement as alleged in the complaint and denied that any money was due the plaintiff as alleged, and set up
four separate defenses which, so far as they are pertinent to this appeal, charged that the plaintiff had no interest in or lien upon the defendant's property. By an amendment to her answer, prior to the pretrial order, the defendant pleaded as a fifth separate defense, the Statute of Frauds.
The pretrial order limited the trial of the action to the following issues:
"a. Was there an agreement between the plaintiff and Joseph and Anna Galante whereby the plaintiff agreed to convey to Patrick Cullinane and his wife the premises first described, and was the consideration therefor to be retained by the defendants as a lien to be secured by a mortgage on the premises secondly described.
"b. If there was such an agreement, then there should be an accounting and a lien for the amount found to be due."
At the close of the plaintiff's case, the defendant moved for judgment. The trial judge, in a letter opinion, dated May 19, 1950, concluded that the plaintiff had not borne the burden of establishing the alleged agreement and decided that the complaint should be dismissed. The opinion states that "There was no testimony as to the terms and conditions of the mortgage which the plaintiff alleges her brother agreed to give her." Subsequent thereto, but prior to the entry of judgment, the plaintiff applied for permission to produce additional evidence; ...