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Diamond Rubber Co. v. Feldstein

Decided: April 12, 1934.

THE DIAMOND RUBBER COMPANY, INCORPORATED, PLAINTIFF-APPELLANT,
v.
PHIL FELDSTEIN, DEFENDANT-RESPONDENT



On appeal from the Supreme Court, whose per curiam opinion is printed in 11 N.J. Mis. R. 457.

For the appellant, Randall B. Lewis.

For the respondent, Peter Cohn.

Perskie

The opinion of the court was delivered by

PERSKIE, J. This appeal brings up for review a judgment of the Supreme Court, which in turn affirmed a judgment of $77.15 in favor of the plaintiff-appellant, and a judgment of $2,000 in favor of the defendant-respondent. Each of the judgments aforesaid, although the judgment record appears to be limited to the latter only, was entered, as we shall presently point out, on the disposal of a rule to show cause by the learned trial judge below.

The record discloses that the appellant sued the respondent on a book account for goods sold and delivered (tires, &c.) in the sum of $4,120.91, plus interest. Although respondent in his answer denied the debt he did, nevertheless, at the trial, concede that, subject to his defenses, he owed this amount to the plaintiff. His defenses, three in number, were as follows: First, that appellant agreed to but failed to allow respondent an additional ten per cent. discount and volume rebate on all merchandise purchased. It is conceded that at the time of the suit the total amount of purchases aggregated $12,046.29, thus the discount totaled $1,204.62. Secondly, that in order to induce respondent to accept the appellant's agency it would send a salesman at its costs and expense to

co-operate, assist solicitations of trade and build up a demand for appellant's tires. The proofs tended to indicate that appellant breached its undertaking and as a result thereof respondent hired such a salesman and paid him $60 a week for a period of fifty-two weeks, or a total of $3,120. Third, that contrary to appellant's agreement to retain respondent as its sole and exclusive agent in and about Passaic county, it circularized and solicited tire users in said county (including customers of respondent) to purchase its products from some third party, namely, Elin Tire Company of Newark, New Jersey, which was likewise an agent of appellant for the sale of its products in and about Essex county. The respondent, in addition to these three separate defenses, set up a counter-claim for damages sustained (loss of business, good will, &c.) by reason of appellant's breach of its alleged undertaking as set out in the third separate defense. Appellant denied respondent's claims and in addition thereto set up an agreement, in writing, between the respondent and itself, which it contends was all inclusive, and it did not, of course, contain the undertaking as alleged by the respondent. This the respondent countered by setting up fraud on the part of appellant's agent in the execution of the agreement. This appellant, of course, denied.

The learned trial judge under proper instructions submitted all the proofs to the jury and it in turn returned a verdict of $9,326 in favor of respondent. On a rule to show cause, the trial judge disposed of the verdict in the manner already indicated.

The grounds of appeal before the Supreme Court were as follows: (1) The trial court refused to nonsuit defendant on his counter-claim. (2) The trial court admitted oral testimony to contradict and amend the written contract between the parties when no fraud or imposition was shown in securing its execution. (3) The trial court admitted certain undated letters allegedly signed by one Volz to defendant. (4) There was an abuse of discretion by the trial court in fixing defendant's damages at $2,000 on his counter-claim

after plaintiff's rule to show cause why the verdict in favor of defendant should not be set ...


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