On appeal from the Supreme Court.
For the plaintiff-respondent, Harry Loeb.
For the defendant-appellant, Saul & Joseph E. Cohn.
The opinion of the court was delivered by
WELLS, J. This is an appeal by the defendant from a judgment entered in the Supreme Court on a verdict directed by the trial judge, at the Passaic Circuit, in favor of the plaintiff, against the defendant.
The grounds of appeal are that the court erred:
1. In refusing to grant defendant's motion of nonsuit.
2. In directing a verdict against the defendant and in favor of the plaintiff.
The suit was brought by the Passaic-Bergen Lumber Company, plaintiff, against the United States Trust Company, defendant, to recover the proceeds of two checks with interest thereon, one of which was for $5,700 and the other for $4,000, signed by two debtors of the plaintiff and made payable to the plaintiff's order, and delivered to one Schick, who was manager of the East Orange branch of the plaintiff's business.
Schick had permitted the Sheridan Construction Company to buy on credit, building materials from defendant's East Orange yard, to the extent of about $35,000, and when he learned that the Sheridan Construction Company was in financial difficulties and unable to finish the houses, into which the plaintiff's building materials had gone, Schick conceived the idea of incorporating a new company, known as the Fidelity Home Builders, Incorporated, to take over and complete these houses, and rent or sell them, and thereby salvage as much as possible from the failure of the Sheridan Construction Company.
Accordingly, without notice to the plaintiff and without its knowledge or authorization, the Fidelity Home Builders, Incorporated, was incorporated and took over the houses and proceeded to complete them, Schick took the two checks in question and endorsed with a rubber stamp the name "Passaic-Bergen Lumber Company" thereon and underneath also endorsed with a rubber stamp the name "Fidelity Home
Builders, Incorporated," and deposited the two checks, aggregating $9,700, in defendant's bank to the account of ...