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Gionti v. Crown Motor Freight Co.

Decided: May 14, 1942.

ARTHUR GIONTI, JR., PLAINTIFF-RESPONDENT,
v.
CROWN MOTOR FREIGHT CO., DEFENDANT-APPELLANT



On appeal from the Supreme Court.

For the appellant, David Cohn (Abram Simon and David Cohn, on the brief).

For the respondent, Archibald Krieger.

Perske

Perskie

The opinion of the court was delivered by

PERSKE, J. This is a contract case. The question requiring decision is whether plaintiff, a licensed engineer and surveyor, but not a licensed architect, is entitled to recover on a contract for architectural services.

Plaintiff sued defendant to recover the value of services rendered it. So far as is here pertinent, he alleged (1) that defendant agreed to pay him $40 for a survey made at its request and (2) that defendant agreed to pay him the reasonable value of his services, as an architect, for drawing plans

and specifications for the proposed erection by it of a garage and office building. The reasonable value of such services was calculated on the basis of 3% of the estimated construction cost of $27,000, namely, $810, or a total of $850.

Defendant denied generally the stated allegations and additionally, by way of separate defenses, claimed (1) that there was no authority to bind it to the pleaded contract, and (2) that the complaint was insufficient in law in that it did not state a cause of action because it failed to disclose the existence of a contract.

At the trial, defendant's motions for a nonsuit and to direct a verdict were denied. The case was submitted to the jury and a verdict was returned by it in favor of plaintiff and against defendant in the sum of $760 plus costs. The propriety of the judgment entered on the stated verdict is here challenged. That challenge is, among other grounds, based on the premise that the trial judge erred in denying defendant's motions for a nonsuit and to direct a verdict in its favor.

Plaintiff, however, earnestly argues that we are precluded from considering these grounds of appeal. That argument is based upon the fact that defendant, in due season, obtained a rule to show cause, without reservation of exceptions, why the verdict of the jury should not be set aside, and that the discharge of that rule is res adjudicata of the motions for nonsuit and to direct a verdict. The argument is without merit. No reasons in support of the rule are made to appear. But the order of the trial judge discharging the rule states that when the application for the rule was made, the reasons assigned were that the verdict was contrary to the weight of the evidence and contrary to the charge of the court. If that be so, and there was concededly no reservation of exceptions, then it would follow that the discharge of the rule would be res adjudicata of the motions for nonsuit and to direct a verdict. Robins v. Mack International, & c ., Corp., 113 N.J.L. 377; 174 A. 551. An examination, however, of the circumstances concerning the discharge of the rule clearly discloses that the rule was, in fact, abandoned in its entirety.

It appears that when counsel for the defendant applied (apparently orally) for the rule to show ...


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