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Internal Water Heater Co. v. Burns Brothers

Decided: January 10, 1935.

INTERNAL WATER HEATER COMPANY, INCORPORATED, PLAINTIFF-RESPONDENT,
v.
BURNS BROTHERS, A CORPORATION OF NEW JERSEY, DEFENDANT-APPELLANT



On defendant's appeal from a jury verdict in the Supreme Court (Essex County Circuit). Affirmed.

For the appellant, Charles E. Howell (Robert H. Brenner, of counsel).

For the respondent, Schotland & Schotland.

Perskie

The opinion of the court was delivered by

PERSKIE, J. This appeal brings up for review a judgment of the Supreme Court (Essex County Circuit) based on a jury verdict in favor of the respondent, plaintiff below, and against the appellant, defendant below, in the sum of $18,276.51.

Notwithstanding the voluminous records and briefs the issue before the court below was rather narrow and limited. It was this: Did the purported contract upon which the plaintiff sought to recover from the defendant set out a valid and binding obligation between the respective parties thereto?

A resume of the proofs is necessary to understand more fully the situation herein presented.

Defendant was a large distributor of coal. On August 27th, 1930, it determined to add to its business a department for the installation and sale of equipment, namely, heaters, motor stokers, &c., to the end of fostering and increasing the use by the public and the sale by it to the public of soft (bituminous) coal. Accordingly its president, Mr. S. A. Wertheim, authorized and directed other officers of the company, Mr. C. R. Runyon, vice-president, and Clarence E.

Armstrong, assistant secretary and assistant treasurer, to make the necessary arrangements for the establishment of this added department. Thereafter, Mr. S. A. Wertheim left for Europe. During his absence his brother, Benjamin Wertheim, vice-president and general manager of the defendant company, took charge of its affairs. It was so contended for the plaintiff, but denied by the defendant. For the plaintiff it was said that he was made acting president and general manager by a resolution of its board of directors; but no such resolution appears. At all events the proofs fully justified the finding that Benjamin Wertheim fully asserted and acted in pursuance of his superior authority for and in behalf of the defendant in this as well as in many other of its business matters.

The plaintiff, a going concern, seemed to have the set up desired by the defendant. It had, especially, an exclusive contract with a concern in Ohio, the Brownell Company, which made some of the necessary equipment, particularly a stoker known as the Brownell stoker. Mr. Armstrong appears to have been the treasurer of the plaintiff company when it was formed in 1928. In that capacity he performed one act; he signed one check. He also discounted customers' paper for the plaintiff. He disclaimed any interest in the plaintiff concern except as a creditor thereof. He brought the plaintiff and defendant together. As a result thereof plaintiff says that it made the contract in question with the defendant.

The contract consists of a carbon copy of a letter, the original of which, it is said, was retained by the ...


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