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Midler v. Heinowitz

June 16, 1952

HARRY L. MIDLER, PLAINTIFF-APPELLANT,
v.
ABRAHAM M. HEINOWITZ, DEFENDANT-RESPONDENT



On appeal from Superior Court, Chancery Division.

For affirmance -- Justices Oliphant, Wachenfeld, Burling and Brennan. For modification -- Chief Justice Vanderbilt and Justice Heher. The opinion of the court was delivered by William J. Brennan, Jr., J. Burling, J. (concurring). Heher, J. (dissenting in part). Vanderbilt, C.J., joins in this dissent. Burling, J., concurring in result.

Brennan

[10 NJ Page 125] Under an order of reference entered in the former Court of Chancery on January 12, 1945, an account was taken by a special master of the

joint venture engaged in by the parties during 1938 in the buying for resale of manufacturers' surplus and scrap. The master filed his report on February 8, 1949, and the defendant filed exceptions. After hearing upon the exceptions the Chancery Division by judgment entered September 19, 1949, (a) struck the addition of $11,775.24 credited to the venture sales account by the master as proceeds of the sale of high-speed steel purchased from Fafnir Bearing Company and found to have been sold to Crucible Steel Company, (b) reduced from $10,599.39 to $3,863.80 the sum added by the master to the venture sales account for sales found by the master to have been made from materials purchased from Bridgeport Thermostat Company, (c) adjudged that the aggregate $4,244.20 of weekly withdrawals by plaintiff should be charged as advances against plaintiff's share of the profits and not as wages and a business expense of the venture, (d) charged plaintiff with $1,000 of the $2,000 additional allowance to the master, (e) disallowed interest on the amount adjudged to be due to plaintiff.

Upon plaintiff's appeal the Appellate Division unanimously affirmed the judgment except to remand the finding reducing the amount of the credit for the Bridgeport Thermostat Company item for further consideration and an explanation of the reason supporting the finding. Midler v. Heinowitz, 6 N.J. Super. 359 (App. Div. 1950). Plaintiff was allowed certification to review the judgment of the Appellate Division, 6 N.J. 568 (1951). Thereupon under an order of remand of this court the Chancery Division further considered the Bridgeport Thermostat Company item and confirmed its original judgment in respect thereto for reasons stated in a letter memorandum. The Appellate Division reviewed that determination and affirmed, one judge dissenting. Midler v. Heinowitz, 20 N.J. Super. 203 (App. Div. 1952). Pursuant to Rule 1:5-1(a) we of our own motion have certified the ensuing judgment of the Appellate Division and also a judgment of the Chancery Division entered April 1, 1952, which adopted the Appellate Division judgment as its own.

Plaintiff's argument for reversal upon the Fafnir Bearing Company and Bridgeport Thermostat Company items emphasizes the contention that the master's factual findings upon those items were not to be disturbed unless it was "clearly and satisfactorily" shown that the master erred in reaching his conclusions. This is the rule frequently stated in our cases as to the weight which ought to be given by the trial court to the master's factual findings when his report is submitted for confirmation. See Oliver v. Autographic Register Co., 126 N.J. Eq. 18, 19 (Ch. 1939); Sinnickson v. Adm'rs. of Bruere, 9 N.J. Eq. 659 (E. & A. 1855); Campanella v. Campanella, 136 N.J. Eq. 111 (E. & A. 1944); Haulenbeck v. Cronkright, 23 N.J. Eq. 407 (Ch. 1873), affirmed 25 N.J. Eq. 513 (E. & A. 1874); Peoples Trust Co. v. Genden, 119 N.J. Eq. 249, 251 (Ch. 1936), affirmed 121 N.J. Eq. 54 (E. & A. 1936). But such findings are not conclusive upon the trial court as plaintiff seems to believe, Holmes v. Holmes, 18 N.J. Eq. 141, 142 (Ch. 1866). The Appellate Division properly held that "* * * a Master's report is not conclusive and binding upon the court, but the court may, upon a Master's report coming before him for confirmation, examine the factual findings and, if it appears to the court that the Master erred in his conclusions, it may proceed to review the facts and reach its own conclusions and determinations." Midler v. Heinowitz, 6 N.J. Super. 359, 363. Rule 3:53-5(b) providing that the master's findings of fact shall be accepted "unless contrary to the weight of the evidence" merely declares this long standing principle. The requirement of Federal Rule 53 (e) (2), 28 U.S.C.A., that the master's findings are to be accepted "unless clearly erroneous," was not carried into our rule, although proposed for adoption in the tentative draft of the rules. Tentative Draft of Rules Governing All of the Courts of New Jersey, p. 201.

The trial judge aptly described the record made before the master as "a welter of conflicting testimony and records."

After our examination we adopt what was said by the Appellate Division, 6 N.J. Super. 359, 363-364:

"* * * An examination of the record here convinces us that the testimony of both plaintiff and defendant was not too reliable; in fact, one gets the impression that when it served their purpose, they had no hesitancy in prevaricating. The Master and the court were faced with a situation where there were no complete records of the joint venture. Plaintiff admitted that he had kept for several years a memorandum book of some of the transactions, but destroyed it about the time of the commencement of this action. Defendant's records were incomplete in many respects. We find the same difficulty as did the trial court in resolving the issues raised by this appeal because of the unreliability of the testimony of the plaintiff and defendant and the lack of complete and satisfactory records. Under these circumstances, the Superior Court was entirely justified in making an independent review of the factual issues and reaching its own conclusions with respect thereto, notwithstanding its findings were not in accord with the Master's."

Upon its independent analysis of the evidence, the Appellate Division concurred with the trial court's findings as supported by the believable evidence, unanimously as to the Fafnir Bearing Company item, and with one judge dissenting as to the Bridgeport Thermostat Company item. In the circumstances of this case we see no reason to make our own findings of fact.

When there are concurrent judgments of two lower courts upon pure questions of fact, a court of last resort will not ordinarily make an independent finding of facts in the absence of a showing of a manifest miscarriage of justice. 3 Am. Jur., Appeal & Error, sec. 908, p. 474. We have the power under Rule 1:2-20(a) (and see Rule 3:52-1) to make new or amended findings of fact on a review of any cause involving issues of fact not determined by the verdict of a jury, but its exercise is permissive in our sound discretion where ...


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