On appeal from the Second District Court of the City of Paterson.
For the plaintiff-appellee, Peter Cohn.
For the defendant-appellant, Evans, Smith & Evans.
Before Justices Trenchard, Case and Heher.
The opinion of the court was delivered by
TRENCHARD, J. This is the appeal of the defendant below from a judgment rendered against it in the District Court by the judge, sitting without a jury.
The state of the case, as settled by the trial judge, discloses that the facts as found by the trial court are, briefly stated, as follows:
Plaintiff-appellee, prior to September 19th, 1938, and from time to time, rented of the defendant several garages, all owned and controlled by the defendant and all covered by a common roof. They were rented for the purpose of storing hay, grain and peanut shells collected by the plaintiff in its business, and which were required to be stored in a dry place, all of which was known to the defendant who, in order to induce plaintiff to become a tenant of such garages, expressly represented to the plaintiff that defendant "would cause said garages to be repaired and put in first-class condition" to remedy a prior leaky and defective condition of the roof. Following this representation and assurance the plaintiff was told by the defendant "that said garages had been repaired and were in perfect shape," upon which representation plaintiff thereupon duly rented the garages, and they were immediately utilized by plaintiff for the purposes intended, to wit, the storage of hay, straw and peanut shells.
On September 19th, 1938, there was stored in the garages, thirty-five tons of peanut shells, sixty tons of straw, and 130 tons of hay. Several months prior to that date, namely, on June 8th, 1938, the defendant was duly advised by plaintiff that the roof of these garages leaked on "at least two occasions" after the plaintiff had moved in. Whereupon, instead of having a regular roofer repair the same, defendant dispatched its handy man, Otto, for that purpose, and the testimony tended to show, and the trial judge found, that such work as he did was done "negligently;" and it further appeared without contradiction that defendant was at all times in control and possession of the garages in question, and the roof thereof. On September 19th, 1938, a severe rainstorm occurred, and the roof leaked and plaintiff's merchandise was damaged, and "everything was spoiled" and "the garages were filled like a flood" and that thereby plaintiff suffered loss in the sum of $300.
Judgment was therefore accordingly rendered in plaintiff's favor for $300, and the defendant appeals.
We now deal with the points made in the defendant's brief which seem to be based ...