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RECEIVED
FEB 9
February 8, 1928.
Edwin F. Smith, Esq.,
Edwards & Smith,
1 Exchange Place,
Jersey City, N. J.
Dear Mr. Smith,
AS I did not have an opportunity this morning to
discuss the Vice Chancellor's suggestion with you, I am
taking the liberty of stating some views concerning it.
First: I understand that the Vice Chancellor sug-
gests that we make what he calls an admission for the pur-
pose of testing jurisdiction of the facts which Mr. Berry
claims that he can prove, with the understanding that if he
decides that the court has jurisdiction the admission will
be entirely disregarded.
I am not clear, however, as to the manner of
raising the jurisdictional question. If we have, as he
suggested, an agreed statement of facts it would seem to me
that the hearing thereon would be & final hearing and that
on appeal the agreed statement of facts would be regarded as
the established facts of the case not only for the purpose
of determining the question of jurisdiction but also for the
purpose of any final decree that the Appellate Court might
direct the Court of Chancery to enter. At all events, I
February 8, 1928.
B.F.S. -2-
would want to be convinced that this is not true before
the Company agrees to any statement of facts.
Second: If the bill of complaint should be
drafted 80 as to state the facts in accordance with the
agreement, the question of jurisdiction could be raised
by a motion to strike the bill.
As a practical matter
this would not involve any danger of & final decree
against us for in the event that the Vice Chancellor
should strike the bill and should be reversed on appeal
we would then go to hearing on the evidence which might
be offered.
My present view of the situation is
that this is the only way in which we can safely adopt the
principle involved in the Vice Chancellor's suggestion.
We have another important question to consider
and that is:What will be our position concerning the ques-
tion raised by the Vice Chancellor as to whether or not
the actions are barred at law?
As I understand it, he
suggested today that perhaps the actions were not barred
by the Statute even though the injury commenced and the
cause of action arose more than two years prior to the in-
February 8, 1928.
E.F.S. -3-
stitution of suit, because the injury had continued and,
in fact, increased up to the time suit was instituted.
While I have not given this question considera-
tion, it does not seem to me that the views which he ex-
pressed are sound.
I am inclined to believe that the
latest date at which the cause of action arose is the
time when the injury occurred and that the continuance
of the injury has no more affect upon the Statute than
the continuance of any injury resulting from a tort.
I think it would be embarrassing for us to take
the position in the Court of Chancery that the Statute
had not run and later to take the exactly opposite posi-
tion in the law court. I would be opposed, therefore,
to any efforts to terminate the Chancery proceeding on
the ground that the cause of action was not barred by the
Statute.
It seems to me that the only chance which we
have to secure a determination of the jurisdictional
question in our favor is to obtain from Mr. Berry a state-
ment of facts which will not support the claim that the
February 8, 1928.
B.F.S. -4-
Company fraudulently concealed the cause of action and
that if the facts which he asks us to stipulate or which
he shall insert in his amended bill (if the matter takes
that course) do show & fraudulent concealment of the
cause of action, we would gain nothing by arguing the
question.
On the other hand, a decision by the Vice Chan-
cellor in advance of the production of further testimony
as to just what facts must be shown in order to consti-
tute a cause of action might be of considerable assis-
tance to Mr. Berry, particularly if he has some witnesses
who will be willing to make their testimony fit the needs
of the case. Of course, I am not insinuating that this
is the fact but it is one of the possibilities that per-
haps should be considered.
While we cannot, therefore, take any definite
action in this matter until after Mr. Berry has submitted
his proposed statement of facts, my present view is that
the Vice Chancellor's suggestions involve danger to us
and that the whole matter requires the most careful con-
February 8, 1928.
B.F.S. -5-
sideration before doing anything further with it. I am
very certain that we should not enter into any stipula-
tion as to the facts unless we are thoroughly convinced
that such stipulation cannot, in any event, form the basis
of a final decree against us either in the Court of Chan-
cery or in the Court of Errors.
Yours very truly,
JS/RAS
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"ocrText": "RECEIVED\nFEB 9\nFebruary 8, 1928.\nEdwin F. Smith, Esq.,\nEdwards & Smith,\n1 Exchange Place,\nJersey City, N. J.\nDear Mr. Smith,\nAS I did not have an opportunity this morning to\ndiscuss the Vice Chancellor's suggestion with you, I am\ntaking the liberty of stating some views concerning it.\nFirst: I understand that the Vice Chancellor sug-\ngests that we make what he calls an admission for the pur-\npose of testing jurisdiction of the facts which Mr. Berry\nclaims that he can prove, with the understanding that if he\ndecides that the court has jurisdiction the admission will\nbe entirely disregarded.\nI am not clear, however, as to the manner of\nraising the jurisdictional question. If we have, as he\nsuggested, an agreed statement of facts it would seem to me\nthat the hearing thereon would be & final hearing and that\non appeal the agreed statement of facts would be regarded as\nthe established facts of the case not only for the purpose\nof determining the question of jurisdiction but also for the\npurpose of any final decree that the Appellate Court might\ndirect the Court of Chancery to enter. At all events, I\nFebruary 8, 1928.\nB.F.S. -2-\nwould want to be convinced that this is not true before\nthe Company agrees to any statement of facts.\nSecond: If the bill of complaint should be\ndrafted 80 as to state the facts in accordance with the\nagreement, the question of jurisdiction could be raised\nby a motion to strike the bill.\nAs a practical matter\nthis would not involve any danger of & final decree\nagainst us for in the event that the Vice Chancellor\nshould strike the bill and should be reversed on appeal\nwe would then go to hearing on the evidence which might\nbe offered.\nMy present view of the situation is\nthat this is the only way in which we can safely adopt the\nprinciple involved in the Vice Chancellor's suggestion.\nWe have another important question to consider\nand that is:What will be our position concerning the ques-\ntion raised by the Vice Chancellor as to whether or not\nthe actions are barred at law?\nAs I understand it, he\nsuggested today that perhaps the actions were not barred\nby the Statute even though the injury commenced and the\ncause of action arose more than two years prior to the in-\nFebruary 8, 1928.\nE.F.S. -3-\nstitution of suit, because the injury had continued and,\nin fact, increased up to the time suit was instituted.\nWhile I have not given this question considera-\ntion, it does not seem to me that the views which he ex-\npressed are sound.\nI am inclined to believe that the\nlatest date at which the cause of action arose is the\ntime when the injury occurred and that the continuance\nof the injury has no more affect upon the Statute than\nthe continuance of any injury resulting from a tort.\nI think it would be embarrassing for us to take\nthe position in the Court of Chancery that the Statute\nhad not run and later to take the exactly opposite posi-\ntion in the law court. I would be opposed, therefore,\nto any efforts to terminate the Chancery proceeding on\nthe ground that the cause of action was not barred by the\nStatute.\nIt seems to me that the only chance which we\nhave to secure a determination of the jurisdictional\nquestion in our favor is to obtain from Mr. Berry a state-\nment of facts which will not support the claim that the\nFebruary 8, 1928.\nB.F.S. -4-\nCompany fraudulently concealed the cause of action and\nthat if the facts which he asks us to stipulate or which\nhe shall insert in his amended bill (if the matter takes\nthat course) do show & fraudulent concealment of the\ncause of action, we would gain nothing by arguing the\nquestion.\nOn the other hand, a decision by the Vice Chan-\ncellor in advance of the production of further testimony\nas to just what facts must be shown in order to consti-\ntute a cause of action might be of considerable assis-\ntance to Mr. Berry, particularly if he has some witnesses\nwho will be willing to make their testimony fit the needs\nof the case. Of course, I am not insinuating that this\nis the fact but it is one of the possibilities that per-\nhaps should be considered.\nWhile we cannot, therefore, take any definite\naction in this matter until after Mr. Berry has submitted\nhis proposed statement of facts, my present view is that\nthe Vice Chancellor's suggestions involve danger to us\nand that the whole matter requires the most careful con-\nFebruary 8, 1928.\nB.F.S. -5-\nsideration before doing anything further with it. I am\nvery certain that we should not enter into any stipula-\ntion as to the facts unless we are thoroughly convinced\nthat such stipulation cannot, in any event, form the basis\nof a final decree against us either in the Court of Chan-\ncery or in the Court of Errors.\nYours very truly,\nJS/RAS"
}