On appeal from the Essex County Circuit Court.
For the appellant, Abraham Rudensey.
For the respondent, Milton M. Unger.
The opinion of the court was delivered by
WELLS, J. On the 21st day of December, 1928, the defendant, Michael Eaton, entered into a written agreement with Edward J. Maier and Euplio DeMarco, by the terms of which he agreed to purchase from them thirty-eight shares of the capital stock of the West Orange Estates, Incorporated, for $15,200. Of this amount $8,500 was to be paid by the defendant in monthly installments of $150.
DeMarco subsequently assigned all his interest in the agreement to Maier, and Maier then transferred his interest therein to the plaintiff, William N. Bayles.
The defendant, Eaton, defaulted in a number of the monthly payments of $150, and Bayles brought suit in the Essex County Circuit Court to recover the amount of these unpaid installments and in due course judgment was entered in his favor for the amount then due. Eaton defaulted in later payments and a second suit was brought in the same
court to recover the installments which had subsequently accrued, and this case also resulted in a judgment in favor of the plaintiff, Bayles.
In each case an answer was filed simply denying each and every allegation contained in the complaint, and a counter-claim was added in which Eaton alleged that Maier, one of the original parties to the agreement, had, as agent of the West Orange Estates, Incorporated, and acting for and in its behalf collected $3,679.56, which he was under obligation to pay to the said West Orange Estates, Incorporated, but that he had appropriated and converted the same to his own use; and that the West Orange Estates, Incorporated, had later duly assigned its claim against said Maier for moneys due and to grow due to it, to the said defendant, Eaton.
The counter-claim was based upon this assignment.
In each case there was a motion to strike out the answer and counter-claim, and after a hearing upon affidavits submitted by plaintiff and defendant, the motion was granted in each case.
The present appeals are based upon the contention that the action of the trial court in striking out the answers and ...