Decided: October 17, 1932.
MORRIS SHAPANKA ET AL., PLAINTIFFS-RESPONDENTS,
SAMUEL NIRENBERG, DEFENDANT-APPELLANT
On appeal from a judgment of the Supreme Court, whose per curiam is printed in 9 N.J. Mis. R. 1339.
For the appellant, David T. Wilentz and Conover English.
For the respondents, Lewis S. Jacobson and Thomas L. Hanson.
[109 NJL Page 550]
This appeal brings up a judgment of the Supreme Court, affirming a judgment of the Middlesex Common Pleas, in a suit brought by the plaintiffs to recover damages for the breach of a contract made by the defendant with the plaintiffs for the manufacture of shirts.
The defendant offered no proofs at the trial. It was undisputed that the defendant had breached the contract and that plaintiffs were entitled to recover their proper damages. It was not error, therefore, for the trial judge to direct that plaintiffs were entitled to recover.
Defendant urges that the quantum of damages should have been found by the jury and that it was error for the trial judge to direct the jury to find a verdict in an amount fixed by the court. After the trial, defendant procured a rule to show cause, reserving exceptions. The record discloses that the only question considered and decided by the trial judge was the question of damages. Testimony was taken upon that question, and the trial court discharged the rule. The argument of this question on the return of the rule is a waiver of the exception. Catterall v. Otis Elevator Co., 103 N.J.L. 381; Matisovsky v. Fidelity, &c., Co., 107 Id. 69; Bennett v. Eagleke, 107 Id. 461.
The judgment under review is affirmed.
For affirmance -- TRENCHARD, PARKER, CASE, DONGES, BROGAN, VAN BUSKIRK, KAYS, DEAR, WELLS, KERNEY, JJ. 10.
For reversal -- None.