On appeal from the Supreme Court.
For the appellants, Herbert A. Kuvin.
For the respondent, Palmer & Powell.
The opinion of the court was delivered by
CAMPBELL, CHANCELLOR. It is contended that on November 15th, 1926, the appellants entered into a contract with the respondent whereby the latter agreed to sell to the former a quantity of live eels, which the respondent then had on hand, at a price of fifteen cents per pound; the appellants paying down $100 and later an additional $200; delivery to be made and taken at the place of storage of the eels, at Manahawkin Bridge, New Jersey. These eels were to be kept by the respondent until December -- about the Christmas holidays -- unless freezing weather should earlier set in, in which event respondent was to notify appellants who were thereupon to immediately send for and take delivery of them.
It is further asserted that at the time of the making of the foregoing agreement the respondent had three thousand four hundred and five pounds of eels on hand and that the appellants authorized him to make further purchases of eels for their account at fifteen cents per pound and that he did so to the extent of three thousand pounds. The time of delivery and acceptance thereof may be more definitely stated as being December 14th, 1926, unless freezing weather prevented, in which event respondent was to notify appellants who, thereupon, were to take immediate delivery.
In the early part of December the weather conditions indicated freezing and it is asserted by respondent, that, probably on the second of that month, he had his helper, one James Mascolo, telephone the appellants at Newark of this condition and notify them to call for and take immediate delivery of the eels. At any rate this seems to have been on a Friday and the appellants did not send for the ells until the
Monday following and in the meantime they had frozen and appellants refused to accept them.
Appellants then brought suit to recover the $300 they had paid and for damages for alleged breach of the contract. The respondent answered by setting up failure of performance upon the part of appellants in taking delivery as, and when, they should and counter-claimed for damages for breach of the contract by appellants not only of the original contract for eels which respondent had on hand, but for those he purchased for appellants' account.
Upon the trial of the issues respondent had a verdict for $398 and from the judgment entered thereon the plaintiffs below appeal.
Six grounds of appeal are filed. None of these is proper and sufficient under the rules of this court, except the third, which alleges error in refusing to strike out the testimony of the respondent.
The gist of the whole complaint is that the testimony of an alleged telephone call by respondent's helper, Mascolo, was improper, and incompetent, because respondent's helper did not recognize the voice of the person with whom he talked and its admission was error under Smarak v. Segusse, 91 N.J.L. 57, and Citrin v. Tansey, 107 Id. 368; that the testimony of the respondent himself as to this telephone message should have been stricken out when a motion for that purpose was made because his speaking thereto was purely hearsay and that the motion to strike out this testimony was timely, coming during the ...