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Erie Railroad Co. v. Groves

Decided: January 10, 1935.

ERIE RAILROAD COMPANY, PLAINTIFF-APPELLANT,
v.
S.J. GROVES & SONS COMPANY, DEFENDANT-RESPONDENT



Plaintiff appeals from a judgment of the Supreme Court (Hudson County Circuit) rendered by the jury in favor of defendant. Affirmed.

For the appellant, Hobart & Minard.

For the respondent, Wright, Vander Burgh & McCarthy.

Perskie

The opinion of the court was delivered by

PERSKIE, J. This appeal brings up for review a judgment in favor of the respondent, defendant below, and against the appellant, plaintiff below, which judgment was based on a jury verdict.

One phase of this suit, based on the second count thereof, was against the Liberty Surety Bond Insurance Company, a corporation of this state, as surety for respondent in the premises. It resulted in a judgment of $25,000 in favor of the appellant and against the surety; and that judgment was affirmed by this court (111 N.J.L. 100; 166 A. 205).

The other phase of this suit, based on the first count thereof, is now before us. On this count plaintiff sought to recover

of the defendant the difference between the $25,000 recovered on the second count aforesaid, and the sum of money it paid to Howard C. Firth on the judgment recovered by him against it, which difference amounted to $33,592.41. The basis for this recovery was the purported letter of the respondent under date of October 15th, 1928; the details thereof as well as a general statement of the subject-matters in controversy are sufficiently stated in the cited case.

Respondent's answer to the instant suit, with the exception of the admission of the first paragraph thereof which relates to the corporate existence, &c., of appellant consisted of a denial of the allegations of the complaint, based on the purported execution and liability under the terms and provisions of the letter dated October 15th, 1928, and the separate and distinct defense (first), "that the alleged agreement set forth in the complaint was not the act and deed of this defendant."

The learned trial judge, in a charge that was instructive, fair and correct, submitted the issues involved, and the law applicable thereto, to the jury. The latter, as already stated, found for the respondent.

That finding, although no adverse criticism is made of the correctness of the legal principle as charged by the trial judge, is now challenged on the grounds: (1) that, "the trial judge should have held as a matter of law that the contract upon which the action was based was signed by an agent of the defendant who had apparent authority so to do;" and (2) that, "whether or not defendant's agent had apparent authority to sign the contract upon which the action was based, the trial judge should have ruled as a matter of law that said contract was ratified by the defendant."

Our careful study of all the proofs in the case leads us to the conclusion that the contentions of the ...


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