United & Globe Rubber Manufacturing Companies v. Conard

82 A. 860, 82 N.J.L. 680, 53 Vroom 680, 1912 N.J. LEXIS 277

• Court: Supreme Court of New Jersey
• Decided: March 4, 1912
• Status: Published

Opinion

The opinion of the court was delivered by

Bergen, J.

This action, which is now under review on a second writ of error, is founded upon a bond given to the plaintiff by defendants in the penal sum of $6,000 conditioned that if the indebtedness already incurred by the principal obligor, the Standard Rubber Company, he fully paid, and all future claims arising from a further extension of credit by the plaintiff to the principal obligor be paid, then the bond to be void. The trial court following, as it supposed, the previous decision in this case, directed a verdict for the plaintiff, and defendants seek a review of that order.

The questions requiring consideration are all contained in the second assignment of error which is based upon the refusal of the trial court to submit to the jury the question whether, under the evidence, the consideration for the execution of the bond was the promise of the plaintiff to extend further credit to, and fill the orders of, the Standard Rubber Company, and also whether, if there was such a consideration, there had been an entire failure of consideration.

The precise question was fully discussed in the opinion read for this court by the Chancellor reported under the present title in 51 Vroom 286, but the plaintiffs in error insist iliai so much of the opinion as declares that the plaintiff’s promise, if there was such a promise, to extend further credit was an independent undertaking, the non-performance of which does not constitute a bar to an action on the bond, was obiter, and thereupon argues the question as if it had not been involved in, or essential to, the determination of the earlier case.

That the part of the opinion questioned on this argument was not obiter dictum an examination of that record clearly discloses. One of defendants’ pleas is that the consideration of the bond “was a continuance of, and further extension of, credit by the plaintiff to the Standard Rubber Company,” and one of the exceptions in the former record was based upon' the charge of the trial court that if the extension of further credit was a part of the consideration for the execution of the bond, and the credit was refused, the refusal • was such a failure of consideration as to prevent a recovery on the bond. The failure of consideration was one of the substantial defences set up, and the question thus raised was not only material, but its consideration was necessary and essential to the proper disposition of the cause. It is difficult to conceive how the cause, as presented, could be properly decided without disposing of this very prominent and material question. The argument made in this ease questions the correctness of the determination by this court of the precise question raised when this case was here by virtue of a former writ of error, and is in effect a reargument of the same question, in the same cause in avoidance of our rule relating to rearguments, and it cannot be given any effect.

The judgment below is affirmed.

For affirmance—Garris or, Swayze, Parker, Berger, Yoori-iees, Ivalisoii, Bogert, Yrederburgi-i, Yhoom, Corgdor, White, JJ. 11.

For reversal—None.