Evening star. [volume] (Washington, D.C.) 1854-1972, 1911-05-05
HON0RFORCARNEG|E :M'LEANS WIN POINT
Receives Gold Medal as Ben Entitled to Trial by Jury n
efactor of Humanity Hope Diamond Case.
TRIBUTE OF 21 REPUBL lCS JUSTICE BARNARD'S VIEWS
Made by Holds Affidavit of Mrs Mclean
Negatives Claim Gem Was Sold.
EULOGY PRESIDENT TAFT DENIED SUMMARY JUDGMENT
forF
Learning of ton of of Purchas Is
JUSTICE BARNARD'S VIEWS
Holds Affidavit of Mrs. Mclean
Negatives Claim Gem Was Sold.
DENIED SUMMARY JUDGMENT
Motion of Plaintiffs for Full Amount
of Purchase Price Is
Not Allowed.


Mclean and his WIFE Evelyn Walsh Nc
Lean, In defense of the suit of Cartier,
the New York jewelers., To recover $50
hT the purchase price OF the celebrated
Hope diamond. are sufficient in law,
Justice Barnard Of the Supreme Court of
the District of Columbia today declined
20 grant the motion of the plaintiffs for
summary judgment. He declared the Nc
leans entitled to have jury pass on the
matter.
A joinder OF issue will probably be filed
by counsel for the jewellers, and the case
will take its place on the trial calendar.
Unless some effort is made to advance
the matter for trial the question OF the
liability OF the McLeans in connection
with the purchase of the gem will not be
1assed on for several months, and per-
haps a year may elapse before the case is
cached
The court declares that the affidavit
of Evelyn Walsh Mclean, In which she
ayers that the diamond was left at her
residence for inspection only, and that
she had nothing further to do with the
tranSa ction. goes to the very heart or
the plaintiffs claim and negatives the
assertion that they had sold and de-
livered the property to her. Her atfi-
davit, says the court, must necessarily
give her right to have the issue tried
by jury
Looks Like Agreement to Sell.
Referring to the answer of Edward Z.
Mclean. Justice Barnard says the con-
tract there set out. and which is un
derstood TO be the only agreement in
the case, partakes more of the nature
of an agreement to sell than a contrac.
of sale. 1t exhibits more than one un-
certainty. the court points out, and clear
ly indicates that some subsequent con-
tract was to be made before the sale
was to be consummated.
Assuming that the only contract"
says Justice Barnard, between the plain
tins and the defendants is the one stat
ed in the written agreement made part
Of the affidavit Of Edward 3. Mclean, |
am unable to say that the minds of the
parties have met SO as to make an ex-
ecuted contract of sale; and, further, the
aftidavits deny explicitly that there wa,
a delivery Of the goods in pursuance of
q contract of sale and purchase. as al
legged In the declaration and the arndavit
of the plaintiff.
IF there was no sale and delivery so
as 10 pass title. then the plaintiffs rem
edy would .e an action for damages for
failure to comply with the executory
contract and not for the purchase money
as provided in an executed contract OF
sale
Under this state Of the issue as made
by the affidavits l am disposed to hold
against the plaintiffs on this motion for
Judgment
Jeweler Asks Full Amount.
AttornevS Rraudenhrrp 4 Rrapdenhurp
and Clarence w. dc knight, for the
Carriers. had asked Judgment for the
full amount of their claim, on the plea
that the defendants answers wore evasive
and did not comply with the seventy
third rule of the court requiring atfi-
davit of defense setting up such q state
OF facts as, ii true, would defeat the
plaintiffs right TO recover. Attorneys
Wilton J. Lambert, J. j. Darlington and
A. S. Worthington, for the McLeans,
.contended the answers were sufficient IN
der the rue.
Justice Barnard. in his written opinion
refusing the summary judgment, reviews
the pleadingS in the case lie also re-
terS to decisions of the Court of Appeals
and of the old Court in General Term
defining the purposes of the rule pro-
viding for summary judgment. This rule,
ii is suggested, was not adopted with
view of striking down the rights OF
Stit tuition by jury. The decisions re-
ferred to esta blish the principle that an
affidavit of defense Will be held sufficient
which alleges facts indicating with rea-
stantial legal defense, and which Is suf
ficient to satisfy the court OF the good
faith Of tn" defendant.
If there be nothing in such affidavit
Of defense to indicate or suggest eva
sion or studied uncertainty of allega-
nial ter
susceptible to clear statement, and if
it appear by any reasonable fair
construction that the facts stated
would constitute defense TO the
i right to trial by jury must be accorded.
Denies Motion of Plaintiffs.
| Applying these principles to the
pleadings in this case. Justice Barnard
states that he is constrained to hold
the affidavits of defense to be within
/ the meaning Of the rule and he must
accordingly deny the motion of the
plaintiffs for summary Judgment.
t In addition to these objections raised
by the defendants, and stated above,
there are allegations" concludes Jus
tice Barnard in his opinion. lin the
affidavit Of Edward B. Mclean that
this agreement to purchase was
brought about by misrepresentation of
the plaintiffs such as would entitle him
TO nave the same declared null and
void. or which would enable him to
rescind the same as being void by rea-
son of the falsity of the representa-
tionS.
while am Inclined TO think that
this defense may be maintained, l do
not for the purpose OF this motion
deem II necessary to consider them for
the other reasons seem to me sufficient
to require the court to overrIlle the
motion for judgment.