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Ball v. Metalwash Machinery Co.

Decided: September 22, 1939.

HAROLD H. BALL, PLAINTIFF-RESPONDENT,
v.
METALWASH MACHINERY CO., INC., A CORPORATION OF THE STATE OF NEW YORK, DEFENDANT-APPELLANT



On appeal from the Supreme Court, Middlesex County.

For the appellant, Heine, Peer, Laird & Mahr (M. Casewell Heine, of counsel).

For the respondent, Victor J. Ruskin.

Perskie

The opinion of the court was delivered by

PERSKIE, J. In this case, we are concerned with two allegedly reversible errors claimed to have been committed by the trial judge. One concerns the admission of parol evidence to show that the date of a written order upon which plaintiff claimed commissions was not in fact the date upon which plaintiff closed the negotiations for the sale represented by that order, and the other concerns the denial of defendant's motions which, if granted, would have materially reduced the amount plaintiff sought to recover under the second count of his complaint.

This is a suit to recover commissions which plaintiff, a salesman, claimed to have earned under his contracts (written and oral) with defendant who is engaged in the manufacture and sale of industrial washing machines, driers and accessories incidental thereto. The complaint consists of two counts.

1. Under the first count plaintiff sought to recover the sum of $536.27. This sum represents the amount of earned commissions claimed upon sales made by him between the date of his written contract with defendant, March 2d, 1931, and

the conceded date of its termination, January 20th, 1936. The sum further represents the sales made within the described territory which, under the contract, had been exclusively assigned to plaintiff but which territory specifically excepted therefrom "the area included within a circle having a radius of thirty-five miles and its center at Columbus Circle in the city of New York." This excepted territory is characterized as both "Metropolitan" and "New York" territory.

Plaintiff's proofs tended to show that the sales were effected prior to January 20th, 1936, while defendant's proofs were to the contrary. Under these conflicting proofs it is conceded (state of case, page 112), and properly so, that a jury question was present. The jury found for plaintiff and accordingly awarded him the sum of $506.73 plus interest of $85.45, or the sum of $592.18 upon this count.

Defendant seeks to set aside the judgment which is in part based upon that verdict. This brings us to the first contention made by defendant, viz., that the trial judge erred in permitting oral testimony to vary the written date of an order for one of the sales. The facts which give rise to the contention are as follows: Plaintiff had testified that the order of the New Departure Division, General Motors Corporation, for a machine was the result of negotiations that he had started in December of 1934 and continued until January 16th, 1936, when the order for the machine in question was effected. Defendant, on the other hand, relied upon the date of the written order for the machine, which was February 7th, 1936, as the effective date thereof. In this posture of the case the plaintiff sought to explain the discrepancy in the dates. He was asked this question: "Q. Mr. Ball, was the order made prior to February 7th? A. It was." Then objection followed and exception was taken on the ground that "the order speaks for itself."

Assuming, but not so deciding, that the objection was timely made and that the reason assigned is a proper one, the point now argued that the testimony trenched upon the parol evidence rule (Naumberg v. Young, 44 N.J.L. 331), because ...


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