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Robins v. Mack International Motor Truck Corp.

Decided: September 27, 1934.

EDMOND E. ROBINS AND MICHAEL BROGAN, CO-PARTNERS, TRADING AS ROBINS & BROGAN, AND FRANK MCGUIGAN, PLAINTIFFS-RESPONDENTS,
v.
MACK INTERNATIONAL MOTOR TRUCK CORPORATION, DEFENDANT-APPELLANT



On defendant's appeal from a judgment of the Supreme Court, based on jury verdicts, rendered at Camden Circuit, in favor of plaintiffs. Affirmed.

For the respondents, C. Richard Allen (Henry F. Stockwell, on the brief).

For the appellant, Starr, Summerill & Lloyd (Richard M. Glassner and Merritt Lane, of counsel).

Perskie

The opinion of the court was delivered by

PERSKIE, J. The judgment which is before us for review represents the result of a third suit between the same parties for the same alleged cause of action. The first was tried before Mr. Justice Donges, when he was Circuit Court judge, and resulted in a judgment of nonsuit. The second trial was also before the same jurist and again resulted in a judgment of nonsuit. On appeal the second judgment was unanimously affirmed by this court. 107 N.J.L. 285.

The present, and third, suit was tried before the late Circuit Court judge, William Eldredge, and resulted in the following verdicts against the appellant: (a) for Robins and Brogan, $2,944.02; (b) for Frank McGuigan, $6,846.66, and (c) for Robins & Brogan and McGuigan, $28,080. Judgments based on these verdicts were entered under one judgment.

A rule to show cause, with exceptions taken at the trial expressly reserved, was granted by the learned trial judge to the appellant. The reasons assigned were that the verdicts were the result of prejudice, passion and bias on the part of the jury and that each verdict was excessive. The memorandum filed by the trial judge, on the disposition of the rule, discloses that it was argued that since verdict (c) of $28,080, awarded for loss of profits to all respondents, was so excessive, it shows that it was the result of passion, prejudice and mistake on the part of the jurors, that it follows that all the verdicts were the result of like infirmities, and therefore, they should all be set aside.

The court below being of the opinion that verdict (c) alone was excessive but not to the extent that it should vitiate the other verdicts, vacated and dismissed the rule to show cause on verdicts (a) and (b) and ordered that the judgments based on the two verdicts be made absolute and granted a new trial as to the judgment based on verdict (c) as to damages only.

The propriety of these judgments as well as the disposition of the rule to show cause, are before us for review.

The instant suit relates to the same controversy which was the subject-matter of the two prior suits between the same parties. It arises out of a claim made by respondents against appellant for damages for loss sustained by reason of the alleged refusal on the part of the appellant to permit respondents to redeem certain trucks, seven in number, which had been repossessed by appellant because of the non-payment of the installments due under the conditional sales contracts between the parties, for said trucks.

The basic question presented for decision on this appeal, therefore, is the same question that was present on the last appeal (107 N.J.L. 285), i.e., whether the tender made by the respondents in their efforts to redeem the trucks (under section 18, Pamph. L. 1919, p. 461) was unconditional and thus valid, or conditional, and thus invalid?

A brief resume of the facts is necessary in order to more fully understand the situation herein presented. They are as follows:

Robins and Brogan were partners engaged in the general hauling business, and McGuigan had become associated with them as a partner in the profits of that business. The first named partners had a conditional sales agreement with appellant for two trucks, which agreement was dated August 14th, 1926 (Exhibit P-1), and designated as the New Jersey contract; McGuigan had a like agreement with appellant for five trucks, which was dated May 27th, 1927 (Exhibit P-2), and was designated as the Pennsylvania contract. Each contained, among its several provisions, the following: "Upon default in the payment of the principal or interest of any said notes (given in pursuance to the agreement) then the vendor may at its option declare all of the said notes immediately due and payable and the same shall thereupon become due and payable;" and, "the purchaser shall at his own expense keep the property free of all liens, * * *."

Prior to July, 1927, there was a default under both agreements. $1,400 was due under Exhibit ...


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