On appeal from the Supreme Court.
For the plaintiff-respondent, Ryman Herr.
For the defendant-appellant, Harvey F. Winant.
The opinion of the court was delivered by
WELLS, J. This is an appeal from a judgment entered in the Supreme Court after a trial at the Hunterdon Circuit, in which the trial judge directed a verdict for the plaintiff for $412.24, with interest from August, 1930.
The plaintiff, who resided at Flemington, New Jersey, was engaged in the plumbing and heating business and brought a suit against Dorothy K. Winant, executrix of the estate of Wilhelmina Berge, deceased, claiming that during the lifetime of Wilhelmina Berge he furnished her with certain material and performed certain work in the installation of a heating plant, water and sewer system in a farm house owned by her, for which she promised to pay him $618.05, and that she paid $205.81 on account, leaving a balance due at the time of her
death of $412.24, and that he duly presented a sworn claim to the defendant, as executrix of the estate, but that she did not pay the same.
The facts indicate that Mrs. Berge and one George H. Bryant were running the farm on shares and that at a term of court previous to the trial of the case, the attorney of appellant had made a motion to have Bryant added as a party defendant on the ground that there was a partnership between him and Mrs. Berge. The question was again brought up at the outset of the trial before the jury was impaneled and sworn. There was a long colloquy in which counsel and court participated, in the course of which the attorney of plaintiff said he was willing to join Bryant as a party defendant; that Bryant was a client of his and had acknowledged service of the summons and complaint, as of a previous date, and would file no answer and make no defense. This was objected to by the attorney of appellant, and the judge did not approve of bringing Bryant in under those circumstances, so the plaintiff elected to proceed against the appellant alone.
Bryant was used by the plaintiff as a witness and testified that he and Mrs. Berge were farming the farm on shares; that Mrs. Berge asked the plaintiff to give her an estimate for the work and that upon the estimate being given, she said it was satisfactory and ordered the plaintiff to do the work and promised to pay him for it; that the work was done as per the estimate. He admitted that the work done benefited him to a certain extent, but claimed that the chief benefit inured to Mrs. Berge, in that the work done was in the nature of permanent improvements to her property and asserted that the bill was her bill and not that of the partnership.
The plaintiff proved by several witnesses that upon the settlement of the partnership affairs, Mrs. Winant, the executrix, was going over a lot of bills presented after Mrs. Berge's death, and when the plaintiff's bill was presented she stated that this bill had nothing to do with the partnership; that Bryant had nothing to do with the bill; that it was Mrs. Berge's personal bill and that she would send a check for it
as soon as she got back to Harrison. Later she told a constable, who called upon her and presented to her a copy of the bill, that she knew about the bill and in a couple of days would ...