On appeal from a judgment of the District Court of the First Judicial District of the county of Hudson.
For the appellant, Solkind L. Levenson (Jacob L. Bernstein, of counsel).
For the respondent, Pierson & Brand (John D. Pierson, of counsel).
Before Justices Trenchard, Bodine and Heher.
The opinion of the court was delivered by
HEHER, J. Plaintiff sued for the price of fuel oil "sold and delivered to the defendant," at the latter's request. The asserted cause of action was pleaded in two counts, viz.: (1) for the price of goods sold and delivered to defendant, and (2) upon a "book account," which, so far as is disclosed
by the state of demand and the copy of the attached account, did not run against defendant.
The question of whether defendant undertook and promised to pay in manner and form thus charged elicited conflicting evidence. Defendant's interest in the premises so serviced was that of a mere mortgagee; the owner was in possession. Plaintiff asserted an absolute undertaking by defendant to pay for the oil delivered to the premises, while defendant, denying the authority of its agent to so contract in its behalf, maintained that the agent's promise was "to pay out of funds if and when deposited to us" by the owner from the rents collected.
It is fundamental in the District Court act, made so by express provision (2 Comp. Stat. 1910, p. 2012, § 205), that findings of fact by the trial judge on conflicting evidence, or on uncontroverted evidence reasonably susceptible of conflicting inferences, are conclusive on appeal. Pollack v. New Jersey Bell Telephone Co., 116 N.J.L. 28.
Nor is there any merit in the claim that the principle of unjust enrichment entitles appellant to a recovery. This is primarily based upon the payment to defendant of rents collected by a receiver appointed in foreclosure proceedings subsequently instituted. Otherwise, it has no factual basis. Plaintiff did not invoke this principle in pleading its cause of action; nor was the case tried on that theory. Moreover, it has no relevancy to the case in hand. The doctrine of unjust enrichment is not applicable in the circumstances. P. Ballantine & Sons v. Gulka, 117 N.J.L. 84. As was said in that case, such obligation as the transaction imposed "is purely contractual in nature; and it is an established principle, fundamental in the law of contracts, that a contractual obligation arises from the mutual consent of the parties only."
The receipt, as mortgagee, of rents collected by the receiver during the pendency of the foreclosure proceedings does not, in equity and good conscience, impose upon defendant, regardless of its contractual intention, the obligation to pay the ...