On appeal from the District Court of the First Judicial District of Monmouth county.
For the plaintiff-appellant, Heuser & Heuser (Ralph S. Heuser, of counsel).
For the defendant-appellee, Henry Jeffery, Edward W. Wise (J. Frank Weigand, of counsel).
Before Justices Trenchard, Case and Heher.
The opinion of the court was delivered by
TRENCHARD, J. This cause of action was based upon an assignment for the sum of $300 made by Henry Jeffery and Arthur W. Smith to Hutchinson, Inc., plaintiff-appellant, as set forth in the state of demand.
The assignment which embodied all the terms of the contract stipulated that the amount of $300 as called for by the assignment should be paid "from the first payment on a certain contract entered into between them and the said Ray C. McLaughlin and Eleanor C. McLaughlin, dated ,"
On April 14th, 1939, a check for $300 was drawn and signed by Hagerman Lumber Company, the disbursing agent for McLaughlin, under a Federal Housing Administration contract entered into between McLaughlin and the Federal Housing Administration. The payees on the check were A. W. Smith and Hutchinson, Inc. On the left-hand corner of the check was written "McLaughlin A.B.C.N.J. 308,
first payment." This check was endorsed over to Hutchinson, Inc., by A. W. Smith and endorsed for deposit by Hutchinson, Inc., in its account.
At the conclusion of the plaintiff's case a motion was made on behalf of the defendant Henry Jeffery, for a nonsuit on the ground that the plaintiff had failed to make out a cause of action. The court granted the nonsuit as to Henry Jeffery and it is from this nonsuit that the plaintiff Hutchinson, Inc., appeals.
We think that the nonsuit was right.
In Pellington v. Erie Railroad Co., 115 N.J.L. 589, the court in discussing the grounds for a nonsuit said: "The power of a judge to order a nonsuit or direct a verdict does not depend upon the absence of all testimony in opposition to the case in favor of which the ruling is made, but the test is whether there is any testimony from which the jury can reasonably conclude that the facts ...