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Culver v. Dziki

Decided: July 28, 1939.

EDMUND H. CULVER, PLAINTIFF-RESPONDENT,
v.
JOSEPH DZIKI AND JULIA DZIKI, DEFENDANTS-APPELLANTS



On appeal from a judgment of the Second District Court of Jersey City.

For the appellants, Martin Simon.

For the respondent, Murray Greiman.

Before Justices Case and Heher.

Heher

The opinion of the court was delivered by

HEHER, J. Defendants suffered a fire loss on an insured building owned by them. Immediately thereafter, on October 11th, 1937, they jointly executed and delivered to plaintiff, a carpenter and builder, the following paper-writing: "I hereby authorize E. H. Culver to appraise fire loss to building at No. 490 Pavonia Ave. for consideration of 5% of settlement, if we are awarded contract for full settlement the 5% appraisal fee is void."

Averring that he "did all that he was required to do under the contract and all that he was permitted to do by the defendants," and that "the fire loss on the building * * * was settled" with the insurers "for the sum of $2,229.91," plaintiff instituted this action to recover damages for breach of the pleaded contract, and was awarded judgment for a sum which is, according to the agreed state of the case, the equivalent of five per cent. of the amount thus paid in settlement of the loss, and interest thereon from the date of settlement. Defendants appeal.

Their first insistence is that the verb "authorize," as here used, "imports nothing more than permission or allowance," and the writing in essence constituted but a "proposal or authorization," and was withdrawn before acceptance, and therefore did not create a contractual obligation on the part of the defendants. The point has no substance.

That "the paper does not contain any words which indicate that" plaintiff "agreed to do" the work "or accepted the offer" is not, as defendants seem to contend, determinative of this question. Even though the writing be deemed a mere proposal, the agreed case reveals evidence of plaintiff's acceptance of the offer prior to its communicated revocation; and it is elementary that a contract comes into being by the unconditional acceptance of an offer before its communicated withdrawal. Such acceptance completes the manifestation of assent requisite to a contractual obligation.

Next, it is maintained that the minds of the parties did not "meet" in the purported contract, since defendants "were illiterate, and did not understand that they were signing a contract."

The point is untenable. The agreed case discloses evidence manifesting a full understanding by the defendants of both the character and contents of the writing at the time they appended their signatures to it. It is fundamental in the act relating to District Courts that findings of fact on conflicting evidence are not reviewable on appeal.

Lastly, it is contended that, assuming the existence of the pleaded contract, defendants "had the right to stop the work thereunder, subject to the ...


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