Winant v. Nautical Preparatory School

Supreme Court of New Jersey

Winant v. Nautical Preparatory School

57 A. 133, 70 N.J.L. 366, 41 Vroom 366, 1904 N.J. Sup. Ct. LEXIS 152

DecidedFebruary 23, 1904

StatusPublished

This text of 57 A. 133 (Winant v. Nautical Preparatory School) 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

Winant v. Nautical Preparatory School, 57 A. 133, 70 N.J.L. 366, 41 Vroom 366, 1904 N.J. Sup. Ct. LEXIS 152 (N.J. 1904).

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Opinion

[367]*367The opinion of the court was delivered by

Dixon, J.

The defendant demurs to the first count of the plaintiff’s declaration, the substance of which is that plaintiff and defendant entered into a written, contract, whereby the plaintiff agreed to superintend the construction of a ship for the defendant, and the latter agreed to have the plaintiff superintend the construction of the ship and to pay him therefor and for the necessary designs two per cent, of the ship’s cost, and that, after the plaintiff had done part of the work, the defendant stopped him and would not let him complete the work ancl would not pay him the stipulated price.

Evidently this alleges a breach of contract and the demurrer is clearly bad so far as it involves the substance of the count.

But the defendant urges that the count claims only unliquidated damages, and as it recites that the defendant was attacked to answer the plaintiff the count is bad, because an attachment would not then issue on a demand for unliquidated damages.

This objection presents no ground for demurrer. By its general appearance and pleading to the action the defendant conclusively acknowledges that it was legally brought into court. The cases cited (Heckscher v. Trotter, 19 Vroom 419; Connelly v. Lerche, 27 Id. 95; Watson v. Noblett, 36 Id. 506; Moore v. Richardson, Id. 531; Sullivan v. Moffat, 39 Id. 211), while they indicate that after such appearance the legality of tíre lien claimed may be inquired into, do not suggest that a demurrer to the declaration could prevail. It may be that, if the declaration presented a cause of action wholly outside of that for which the attachment issued, it would be stricken out on motion, but for the demands which the defendant was attached to answer its general appearance is a final consent.’

The plaintiff is entitled to judgment on the demurrer.

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[367]*367The opinion of the court was delivered by

Dixon, J.

The defendant demurs to the first count of the plaintiff’s declaration, the substance of which is that plaintiff and defendant entered into a written, contract, whereby the plaintiff agreed to superintend the construction of a ship for the defendant, and the latter agreed to have the plaintiff superintend the construction of the ship and to pay him therefor and for the necessary designs two per cent, of the ship’s cost, and that, after the plaintiff had done part of the work, the defendant stopped him and would not let him complete the work ancl would not pay him the stipulated price.

Evidently this alleges a breach of contract and the demurrer is clearly bad so far as it involves the substance of the count.

But the defendant urges that the count claims only unliquidated damages, and as it recites that the defendant was attacked to answer the plaintiff the count is bad, because an attachment would not then issue on a demand for unliquidated damages.

This objection presents no ground for demurrer. By its general appearance and pleading to the action the defendant conclusively acknowledges that it was legally brought into court. The cases cited (Heckscher v. Trotter, 19 Vroom 419; Connelly v. Lerche, 27 Id. 95; Watson v. Noblett, 36 Id. 506; Moore v. Richardson, Id. 531; Sullivan v. Moffat, 39 Id. 211), while they indicate that after such appearance the legality of tíre lien claimed may be inquired into, do not suggest that a demurrer to the declaration could prevail. It may be that, if the declaration presented a cause of action wholly outside of that for which the attachment issued, it would be stricken out on motion, but for the demands which the defendant was attached to answer its general appearance is a final consent.’

The plaintiff is entitled to judgment on the demurrer.

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Bluebook (online)

57 A. 133, 70 N.J.L. 366, 41 Vroom 366, 1904 N.J. Sup. Ct. LEXIS 152, Counsel Stack Legal Research, https://law.counselstack.com/opinion/winant-v-nautical-preparatory-school-nj-1904.