On appeal from the Essex County Circuit Court.
For the plaintiff-appellant, Spaulding Frazer (Jack Rinzler and Harry Schaffer, of counsel).
For the defendant-respondent, Milton M. Unger (Sydney L. Seiler, on the brief).
The opinion of the court was delivered by
PORTER, J. This appeal is from a judgment recovered in the Essex County Circuit Court by the respondent on its counter-claim.
The action was for a breach of contract for the installation of an air conditioning system in the appellant's bar and restaurant.
The claim was that the equipment installed was not as specified; that it was not satisfactory in doing the work intended and that it had not been installed within the time limited in the contract. The respondent denied any breach and counter-claimed for the sum of $11,400, which was the unpaid balance of the contract price.
The verdict of the jury was in favor of the respondent on the counter-claim of $7,537 which the trial court reduced to $7,285 because of an obvious error in the calculation of interest.
The issues were sharply disputed, thoroughly and ably presented, especially as to the equipment which was installed and whether it was as provided for in the contract. The case presented was largely one involving factual disputes.
It will be noted that the verdict was over $4,000 less than the unpaid balance of the contract price. This means that the finding of the jury was there had been a breach of the contract and that appellant's damage was the difference between the unpaid balance of the contract price and the amount of the verdict.
An examination of the voluminous record satisfies us that the trial court committed no error which injuriously affected the substantial rights of the appellant, therefore there should be an affirmance. Cf. Kargman v. Carlo, 85 N.J.L. 632; Ridgeley v. Walker, 86 Id. 590; Connoly v. Public Service Railway Co., 94 Id. 157.
The first, and perhaps the main point, urged by appellant as reversible error is that the trial court was in error in directing a verdict against it on the fourth count of the complaint. This count sets up the provision of the contract, and charges its breach, it provided that the cooling system be installed and in operation by May 30th, 1938, and failing in those respects the respondent shall pay $100 for every day thereafter until the installation and operation be completed as liquidated damages. We think that a legal question for the court rather than a factual one for the jury was presented on this motion as to the ...