On appeal from the Supreme Court.
For the appellant, Collins & Corbin (Edward A. Markley, of counsel).
For the respondent, Fleming & Handford (James L. Handford, of counsel).
The opinion of the court was delivered by
TRENCHARD, J. This is an appeal from a judgment of the Supreme Court entered upon the verdict of a jury at Circuit in favor of the plaintiff below.
The suit was brought to recover the unpaid purchase price of pumps and machinery which plaintiff manufactured and delivered, as it contends, on the order of the defendant below and for which the latter agreed to pay.
The case grows out of a contract which was entered into by John H. Proctor with the borough of Sayreville in 1922
to do some municipal work for the borough. It appears that the defendant, the Royal Indemnity Company, executed for Proctor a bond of indemnity for the completion of the work according to the contract; that the contract called for certain pumps and machinery which Proctor ordered from the plaintiff, the American Well Works; that after giving such order and before the pumps were delivered, Proctor defaulted in his contract.
The evidence further tended to show that thereafter L. W. Carle took over Proctor's contract by assignment from Proctor to him with the consent of the borough, after a creditors' conference at which Carle represented the defendant, and Mr. Whinery the plaintiff, and that Carle agreed that plaintiff was to deliver and was to be paid for the pumps and machinery not yet delivered.
The theory of the plaintiff's case was that the assignment to Carle was not to him individually, although on its face it was, but as the representative of the defendant company. On the other hand, the defendant insisted that Carle individually was the contractor in his own right and not as the representative of the defendant.
The question presented at the trial, therefore, was whether the pumps and machinery, the subject-matter of the suit, were purchased by ...