On appeal from the District Court.
For the appellant, Abraham R. Klitzman.
For the respondent, Goldstein & Novogrod (William Novogrod).
Before Justices Bodine, Heher and Perskie.
The opinion of the court was delivered by
BODINE, J. The suit was upon a written contract for a credit rating service. It was tried in a District Court and the plaintiff had judgment. The defendant appeals. The pertinent portion of the contract was as follows: "Terms of Subscription to Dun & Bradstreet, Inc. The undersigned hereby employs Dun & Bradstreet, Inc., to furnish credit reports on individuals, partnerships and corporations engaged in mercantile or commercial business in the territory covered by the Reference Books herein specified, for the term beginning January 1st, 1941, and ending December 31st, 1941, and agrees to pay in advance, Two Hundred Twenty-five dollars ($225.00/xx). If the reports requested exceed a minimum of 50 we agree to pay on demand for additional reports at the rate of $1.25 each. To facilitate the service, Dun & Bradstreet, Inc., is to loan to the Undersigned its Reference Book designated as Number 2, Editions of: January, 1941 May, 1941 Sept., 1941."
The defendant was obligated to make quarterly payments of $56.25 on the 1st of January, April and July and October, 1941.
The suit was brought in the first instance against the defendant and the Railway Express Agency, Incorporated, and resulted in a verdict of no cause of action against the latter.
The disputed fact was whether the defendant had refused to accept delivery of the books from the Express Agency. The uncontroverted fact was that two books were timely expressed from the plaintiff's home office properly addressed to the defendant at its place of business and charges were prepaid. No quarterly payments were made. Probably in response to letters asking payment the defendant wrote on May 8th, 1941, as follows: "In answer to your letter of May 6th,
we are at a loss to know why you keep billing us for your service, as, up to the present time, we have neither had your book or any other part of your credit service, except a few circular letters from you from time to time. The writer feels that if you will look this matter up, you will find the above to be the fact."
After taking the matter up with the Express Company, the plaintiff received the following report which was placed in evidence: "Subsequent to your first inquiry regarding two shipments for the Wilsonite Products Co., you were advised first that the shipments were on hand and I later reported to you that delivery of both shipments were made on May 23d, 1941, signed by the receiving clerk, T. Hay. It was necessary to continue with the express agent at Allenwood, N.J., for explanation why delivery could not be effected and I am just in receipt of report that the Wilsonite Products Co. get many express shipments and are notified promptly by telephone. In this instance they were notified several times that shipments were being held, but no effort on the part of Wilsonite Products Co. was made to take those shipments from the express office."
The defendant offered the testimony of an assistant secretary and treasurer of the Wilsonite Company, who had charge of the office. She said express shipments were picked up at the Manasquan express office, and testified to the following custom respecting them: "Well, sometimes they would just drop us a card and say there was a carton there and different other times they would call up, and about once a week usually we would have a shipment come in." It appears also that shipments were picked up by Tom Hay, foreman and shipping clerk, who would use his car and once when the packages were very numerous a truck was secured. She further testified: "It was in May, I think it was -- it was in May, our man went down to pick up some cartons and other things down there and this Dun and Bradstreet stuff just happened to be on the pile and of ...