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Westside Trust Company v. Gascoigne

Decided: March 16, 1956.


Clapp, Jayne and Francis. The opinion of the court was delivered by Francis, J.A.D.


Plaintiff bank sought judgments on three promissory notes, alleged to represent obligations of the defendants Arthur O. Gascoigne and Sydney Jackson, trading as partners under the name Jackson Contractors. The complaint is in three counts, each on a separate note. The first bears the date July 24, 1952; the second, December 3, 1952, and the third, March 6, 1953. They are signed "Jackson Contractors, Arthur O. Gascoigne." The appendix does not disclose any answer filed by Gascoigne. Jackson answered, denying the existence of a partnership at the times in question and asserting that the notes represented personal obligations of Gascoigne. On motion, summary judgment was entered against Jackson on the second and third counts; the first count was held for trial because the trial court concluded that a disputed factual issue existed as to that note. West Side Trust Co. v. Gascoigne , 37 N.J. Super. 588 (Law Div. 1955). This appeal followed.

At the outset a procedural bar presents itself. A judgment is final so as to be reviewable only when it disposes of the litigation as to all issues and all parties. Here only two of the three causes of action were adjudicated; the judgment is interlocutory in character and not appealable as of right. R.R. 2:2-1; Petersen v. Falzarano , 6 N.J. 447, 452 (1951); Thatcher v. Jerry O'Mahony , 37 N.J. Super. 139, 142 (App. Div. 1955); Vollbehr v. Ingram , 22 N.J. Super. 249, 252 (App. Div. 1952). Moreover, no effort was made to cloak it with the quality of finality under R.R. 4:55-2; Thatcher v. Jerry O'Mahony, supra , 32 N.J. Super. ,

at page 142; Bartzak v. John W. McGrath Corp. , 23 N.J. Super. 301 (App. Div. 1952); Eisenberg v. Trad Television Corp. , 22 N.J. Super. 332 (App. Div. 1952).

It is to be regretted that the flow of unauthorized appeals continues despite reminders of the practice requirements. In re Opper's Estate , 29 N.J. Super. 520, 527 (App. Div. 1954); Sagarese v. Board of Health, Morristown , 27 N.J. Super. 400, 402 (App. Div. 1953); 9 Rutgers L. Rev. 319. Attention is called to the thoroughly informative discussion of the subject of appeals from interlocutory orders by Justice Jacobs in Appeal of Pennsylvania Railroad Co. , 20 N.J. 398 (1956). Study of the opinion will bring about an understanding of the philosophy on which the final judgment requirement rests. Further, it will serve to create an awareness of the broad power of this Division to grant leave to appeal from intermediate orders or judgments when the grounds therefor are "substantial" -- where the rights involved are "too important to be denied review." Id. , at page 409; R.R. 2:2-3(b).

The parties have argued the merits of the controversy without reference to or discussion of the procedural problem. The summary judgment is one which the trial court might have treated as final under R.R. 4:55-2 if request to do so had been made. The argument on the merits persuaded us that the questioned summary disposition was not warranted. Consequently, the spirit of the rules has impelled us to decide the matter now and thus avoid a renewal of the appeal which would probably come after final judgment, if we dismissed this one as premature.

Summary judgment is proper only where the record shows palpably that there is no genuine issue as to any material fact in the case. R.R. 4:58-3. The papers supporting the motion are required to be closely scrutinized; those opposed to it indulgently treated. Doubts must be resolved in favor of the conventional trial. The matter cannot be decided on the affidavits of the parties where inferences for and against the existence of the cause of action or the defense arise therefrom, no matter how strongly they point in one

direction or the other. Affidavits are of value only when they demonstrate palpably the absence of a factual dispute as to elements of the cause of action or defense. Judson v. Peoples Bank & Trust Co. , 17 N.J. 67, 76 (1954); Mayflower Industries v. Thor Corp. , 15 N.J. Super. 139, 155 (Ch. Div. 1951), affirmed 9 N.J. 605 (1952).

Turning to the facts, it appears that Jackson and Gascoigne were partners trading as Jackson Contractors from 1946 until September 1, 1949. The partnership was dissolved and on the latter date Gascoigne filed a certificate in the Essex County Clerk's Office under N.J.S.A. 56:1-1, 2, establishing that thereafter he alone was doing business under the trade name "Jackson Contractors."

In June 1952 Gascoigne sought a loan from the plaintiff bank. He claims to have advised the vice-president with whom he dealt that he was operating Jackson Contractors himself. The bank official's recollection (according to a deposition) was that Gascoigne said he and Jackson were partners.

In any event, on June 23 this vice-president had Gascoigne fill out and sign an elaborate financial statement for Jackson Contractors. A portion of this statement is as follows:

" Partnership. (State whether partnership operates under written Articles of Copartnership or verbal agreement): Verbal

Date of Partnership ...

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