Reiman v. Essex Chair Co.

159 A. 675, 10 N.J. Misc. 518, 1932 N.J. Sup. Ct. LEXIS 182

• Court: Supreme Court of New Jersey
• Decided: April 9, 1932
• Status: Published

Opinion

.Pee Cueiam.

The action was to recover the balance of the consideration of a contract for the extermination of rats from the factory of the appellant. The cause was tried by the District Court judge, without a jury, and resulted.in a judgment in favor of the plaintiff below.

Appellant urges two grounds why this judgment should be reversed.

• 1. The suit was prematurely brought.

This is without substance. By the express terms of the contract failure to pay the monthly installments made the entire balance due immediately. There was proof of nonpayment of installments from which the court was justified in finding such acceleration of payment of the consideration of the contract.

2. The court erred in finding that the rats were exterminated.

It is here urged that the proof in this direction on the part of the plaintiff, upon whom the burden rested, was that there were no rats, which is merely negative evidence, having no probative value in the face of affirmative evidence of the presence of rats.

The situation is not like unto that in Holmes v. Pennsylvania Railroad Co., 74 N. J. L. 469; Horandt v. Central Railroad Co., 78 Id. 190, and Boylan v. Meeker, 28 Id. 274, cited by appellant.

In the present case the proofs said to be negative evidence were not such but, in fact, affirmative, based, as is said, upon actual examination and investigation. The weight to be given to this as well as to the contrary evidence upon the part of the defendant below, was for the trial judge to determine.

The judgment under review is affirmed, with costs.