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Meserve v. Traverso

Decided: January 26, 1938.


On appeal from the Supreme Court, whose opinion is printed in 15 N.J. Mis. R. 554; 192 A. 835.

For the appellant, Milton T. Lasher.

For the respondent, Harry J. Goas.


The opinion of the court was delivered by

PERSKIE, J. The basic question requiring decision is whether, under the circumstances exhibited, parol evidence concerning the allegedly intended exclusion of certain fixtures from the bill of sale covering the transaction between the seller and the buyer was properly admissible. We think that it was.

Counsel for the respective parties stipulated the state of case which was submitted to the Supreme Court. From the facts so stipulated, we learn that respondent -- plaintiff below -- sold appellant a store, merchandise, fixtures, good-will, &c., for the sum of $350. Defendant paid $200 upon the closing of the sale, and executed and delivered to plaintiff six promissory notes of $25 each. Defendant paid two of these notes, and apparently refused to pay the remaining four. Whereupon plaintiff sued defendant in the District Court of the Second Judicial District of Bergen county, to recover the balance of $100 allegedly due her. Defendant counter-claimed. The gravamen of that claim is that although plaintiff, in her bill of sale covering the transaction with defendant, warranted that she had good and sufficient title to the chattels sold, and although plaintiff further warranted (in her affidavit accompanying the bill of sale) that the chattels were free from liens, nevertheless, contrary to said warranties, a frigidaire and two compressors in the store were in fact subject to a conditional sales agreement under the terms of which title to these fixtures vested in The Borden Company, and upon which agreement there was still due $278.74. It was agreed that if defendant was entitled to recover any sum on his counter-claim should be the sum equal to the sum remaining due and owing upon the fixtures, namely, $278.74.

We learn further that the only reference in the bill of sale as to the chattels conveyed and sold thereunder is the reference that plaintiff conveys and sells to defendant "all the goods and chattels more particularly described." The only place where any attempt is made to describe the chattels thus sold is in the schedule annexed to the bill of sale. This purported description lacks certainty and particularity; it is

in fact vague and most general in character. Such as it is, it does not enumerate the frigidaire or compressors for which defendant counter-claimed. It does, however, conclude with this general sentence, "All stock, fixtures, including confectionery, liquor and all goods now in said premises."

The trial judge, over objection that the proffered testimony offended the parol evidence rule (Naumberg v. Young, 44 N.J.L. 331) permitted, and finally considered, the testimony for the plaintiff tending to show that defendant, prior to the execution of the bill of sale, had a clear understanding that the fixtures covered by the conditional sales agreement were not included in the sale. Defendant offered testimony to the contrary. The trial judge concluded that "defendant had knowledge of the conditional sales agreement covering the fixtures in question prior to the sale," and accordingly entered judgment for the plaintiff in the sum of $100, and dismissed defendant's counter-claim.

Defendant appealed to the Supreme Court. There he specified six determinations of the District Court with which he was dissatisfied in point of law. It will serve no particularly useful purpose to restate them. Suffice it to observe that we are fully in accord with the view that the Supreme Court took in concluding that there was no merit to either the fourth, fifth or sixth specification. The first three specifications, however, give rise to the stated basic issue requiring decision in this case. In these three specifications defendant contends, as he did at the trial, that the court erred in permitting witnesses to answer questions concerning the understanding between the seller and the buyer as to the alleged exclusion from the sale of the fixtures covered by the conditional sales agreement. The Supreme Court held that this point was not properly before it, because these specifications failed to meet or satisfy our oft declared requirement that upon rulings of evidence the grounds of appeal should state the names of the witnesses, the questions or answers objected to and relied upon. State v. Blaine, 104 N.J.L. 325; 140 A. 466; Booth v. Keegan, 108 N.J.L. 538; 159 A. 402; Meeks v.

Van Keuren & Sons, Inc., 116 N.J.L. 102; 182 A. 867, and a host of others to like effect. ...

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