Loesser Manufacturing Co. v. Julius Schmid, Inc.

Supreme Court of New Jersey

Loesser Manufacturing Co. v. Julius Schmid, Inc.

125 A. 30, 100 N.J.L. 123, 1924 N.J. LEXIS 199

CourtSupreme Court of New Jersey

DecidedMay 19, 1924

StatusPublished

Cited by1 cases

This text of 125 A. 30 (Loesser Manufacturing Co. v. Julius Schmid, Inc.) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Loesser Manufacturing Co. v. Julius Schmid, Inc., 125 A. 30, 100 N.J.L. 123, 1924 N.J. LEXIS 199 (N.J. 1924).

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Opinion

The opinion of the court was delivered by

Minturn, J.

The suit was to recover the value of goods sold and delivered, consisting of toilet boxes, to which demand the defendant interposed a counter-claim as to which the trial court directed a nonsuit, the propriety of which judicial action is involved in this appeal.

The plaintiff’s claim was not controverted, but was practically admitted by defendant to the extent of $1,824.94, the excess for which judgment was demanded, consisting of one disputed item ($199.14) was submitted to the jury, and they found for the plaintiff upon that item, as well as upon the said uncontested item, plus interest due thereon, which items constitute the amount of the verdict, viz., $2,062.18. The issue thus considered by the jury obviously presented only a question of fact, and as such was properly submitted to the juiy.

The counter-claim amounting to over $3,000 depended for legal recognition upon proof of an alleged agreement between the parties. Conceding the existence of the agreement, of which there was no proof, and as a result of a breach of which no damages appear to have been proved, it must suffice to say that it is manifest from the record that the amount involved in the counter-claim had been paid by the defendant to the plaintiff upon the settlement of a prior account by the giving of six promissory notes, each of which was paid by defendant at maturity. No consideration seems to exist as a basis for the alleged agreement, nor was such an agreement proved. In any event the payment by the defendant was voluntary in character, and involved a settlement of those items, and as such under the well-settled rule it cannot be made the basis for a counter-claim, or for an original cause of action. Koewing v. West Orange, 89 N. J. L. 539.

The action of the trial court therefore in this respect was .legally correct. We have examined the remaining alleged *125 procedural errors, and find nothing therein of legal moment, which under the Practice act can be said to affect prejudicially the substantial rights of the appellant.

The judgment will therefore be affirmed.

For affirmance — The Chancellor, Chibe Justice, Trennu art), Parker, Minturn, Kalisch, Black, Katzenbach, Campbell, Lloyd, White, Gardner, Yan Buskirk, Clark, McGlennon, Kays, JJ. 16.

For reversal — None.

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The opinion of the court was delivered by

Minturn, J.

The suit was to recover the value of goods sold and delivered, consisting of toilet boxes, to which demand the defendant interposed a counter-claim as to which the trial court directed a nonsuit, the propriety of which judicial action is involved in this appeal.

The plaintiff’s claim was not controverted, but was practically admitted by defendant to the extent of $1,824.94, the excess for which judgment was demanded, consisting of one disputed item ($199.14) was submitted to the jury, and they found for the plaintiff upon that item, as well as upon the said uncontested item, plus interest due thereon, which items constitute the amount of the verdict, viz., $2,062.18. The issue thus considered by the jury obviously presented only a question of fact, and as such was properly submitted to the juiy.

The counter-claim amounting to over $3,000 depended for legal recognition upon proof of an alleged agreement between the parties. Conceding the existence of the agreement, of which there was no proof, and as a result of a breach of which no damages appear to have been proved, it must suffice to say that it is manifest from the record that the amount involved in the counter-claim had been paid by the defendant to the plaintiff upon the settlement of a prior account by the giving of six promissory notes, each of which was paid by defendant at maturity. No consideration seems to exist as a basis for the alleged agreement, nor was such an agreement proved. In any event the payment by the defendant was voluntary in character, and involved a settlement of those items, and as such under the well-settled rule it cannot be made the basis for a counter-claim, or for an original cause of action. Koewing v. West Orange, 89 N. J. L. 539.

The action of the trial court therefore in this respect was .legally correct. We have examined the remaining alleged *125 procedural errors, and find nothing therein of legal moment, which under the Practice act can be said to affect prejudicially the substantial rights of the appellant.

The judgment will therefore be affirmed.

For affirmance — The Chancellor, Chibe Justice, Trennu art), Parker, Minturn, Kalisch, Black, Katzenbach, Campbell, Lloyd, White, Gardner, Yan Buskirk, Clark, McGlennon, Kays, JJ. 16.

For reversal — None.

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125 A. 30, 100 N.J.L. 123, 1924 N.J. LEXIS 199, Counsel Stack Legal Research, https://law.counselstack.com/opinion/loesser-manufacturing-co-v-julius-schmid-inc-nj-1924.

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