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Sellick v. Forster

Decided: July 30, 1938.

ROBERT SELLICK, RESPONDENT,
v.
SAM FORSTER, APPELLANT



On appeal from the Essex Circuit Court.

For the appellant, Edward R. McGlynn (Arthur T. Vanderbilt and Frederick W. Hall, on the brief).

For the respondent, Herbert R. Baer (Robert H. McCarter, on the brief).

Before Justices Trenchard and Parker.

Parker

The opinion of the court was delivered by

PARKER, J. This is an appeal from judgment for plaintiff upon a second trial, after reversal at October term, 1934. The first judgment was reversed because the jury were instructed to allow interest though the claim was never liquidated by sending a bill, notwithstanding plaintiff was in a position to make up the figures; with incidental criticism of the trial court for having left the case to the jury without

any discussion of the "confused and contradictory" evidence. The question of interest comes up again on the present appeal.

The suit was for an unpaid balance of architect's fees. The architect's job was complicated interior reconstruction of a somewhat dilapidated building in Market street, Newark. The photographs and plans put in evidence are persuasive that this was a very difficult and tedious matter, involving an enormous amount of detail, and that the rate charged, and according to the evidence agreed on, of ten per cent. for completed work, and six per cent. on work planned but not executed, is not at all out of the way. Plaintiff's case was that there was an oral employment at these rates on a general reconstruction scheme which in fact ran over a period of years, with small payments from time to time on account, aggregating $3,900 (defendant claimed more); that he sent no bills because defendant had all the contractors' statements and other documentary data from which to figure them, and finally, after the statute of limitations had run (as claimed) as to the principal part of the work, defendant had shown him the door.

The "big job" of reconstruction was done in 1921 and 1922. Further work was done in 1924, 1926, 1927, 1928, 1929. Defendant claimed, and plaintiff denied, that these were all separate jobs. The suit was begun March 15th, 1930, and the statute of limitations was pleaded. Plaintiff's answer to this was (a) that all was one continuous contract, running over into the six-year period, i.e., later than March 15th, 1924; and (b) two payments, allegedly "on account" one made March 22d, 1924, and one September 14th, 1929, the original check bearing the words "in full" which plaintiff erased, but the bank refused to cash it, and plaintiff got the check marked in evidence from the back of defendant's check book, drew it, changed the number to that of the rejected check, and defendant signed it.

Point I (a) challenges the refusal of the trial court to direct a verdict for defendant "as to all items * * * prior to March 15th, 1924, * * *" (six years before suit was begun).

We think there was a jury question here in two aspects; (1) some evidence, though meagre, of a continuous contract indefinite in duration, and carried over into the six-year period; (2) some evidence that one or both the above payments was or were on account of the "main job," as we may call it for convenience, assuming it had terminated more than six years before suit. It is argued under this point that payments on account of an acknowledged debt are ineffective to toll the statute unless the amount is liquidated or definitely ascertained; but we do not understand that our cases so hold, and think that the Pennsylvania cases cited are not in line with our decisions. See Smith v. Gavin, 5 N.J. Mis. R. 323; 136 A. 428, a suit for reasonable value of services to decedent. The old cases seem to say that defendant must ...


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