Decided: May 17, 1935.
JULIA B. LOWY MILLER, PLAINTIFF-RESPONDENT,
ALBERT STIEGLITZ ET AL., DEFENDANTS-APPELLANTS
On appeal from the Supreme Court.
For the defendants-appellants, Nathaniel Weltchek.
For the plaintiff-respondent, Samuel Press.
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The facts upon the retrial of the case of Miller v. Stieglitz, 113 N.J.L. 40, were so substantially in accord with those reported that they will not be here restated.
(1) The refusal of the learned trial judge to apply the doctrine of res adjudicata was in accordance with our opinion, supra.
(2) The questions of agency and the burden of proof were properly submitted to the jury. There would have been error on the proofs adduced in this case in adopting the language of the defendants' counsel without change or modification.
(3) That which the learned trial judge said as to the duty
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to make tender within a reasonable time followed the opinion of this court, supra.
(4) The charges requested and adverted to under point 4 overlooked the fact that the defendant brokers had charged their customer for both classes of stock. The customer merely sought in this action recovery for moneys wrongfully misapplied for the purchase of stock never received nor tendered within a reasonable time.
(5) The charges requested and referred to under point 5 would have been erroneous if given as framed.
(6) The trial court in refusing the direction of a verdict complied with the prior determination of this court.
The judgment is affirmed, with costs.
For affirmance -- THE CHANCELLOR, CHIEF JUSTICE, PARKER, LLOYD, CASE, BODINE, DONGES, HEHER, PERSKIE, VAN BUSKIRK, KAYS, HETFIELD, DEAR, WELLS, JJ. 14.
For reversal -- None.