On appeal from the Bergen County Circuit Court.
For the appellant, William N. Gurtman (Aaron Z. Schomer, of counsel).
For the respondent, Atwood C. Wolf.
The opinion of the court was delivered by
HEHER, J. Plaintiff appeals from a judgment entered on a jury verdict for defendant on the complaint. The verdict was in favor of plaintiff on defendant's counter-claim, but there is no appeal from the judgment thereon.
The complaint pleaded a contract in writing whereby defendant agreed to sell to plaintiff unused lumber and miscellaneous building materials which it had on hand, itemized
as to character and quantity in a schedule thereto annexed, for the price of $29,000; that, although the purchase price had been paid in full, defendant had refused to deliver certain materials thus sold of the value of $8,249.84; and that defendant is entitled to credit for $2,241.62, representing the value of materials delivered to plaintiff "in excess of the quantity called for under the contract." Judgment for the difference is sought.
The answer and counter-claim averred that "the parties arrived at the basic consideration price of $29,000 through error and mistake in mathematical calculation and computation, in that there was assigned, by erroneous multiplication, incorrect prices to a large number of items of rough lumber which formed a large part of the materials comprehended by and embraced by said agreement;" that, as a result of this mistake, the total price was "erroneously calculated at $35,172.91, whereas it should have been calculated at $48,741.64, or as to the rough lumber it was erroneously computed at $1,513.84, whereas it should have been computed at the correct figure of $15,082.57;" that plaintiff accepted defendant's offer "with full knowledge of said mistake," and plaintiff therefore "cannot recover on the contract;" that the total value of the materials "removed" by plaintiff, at the unit prices, was $48,741.64, and that plaintiff thereby became indebted to it for that amount, less the discount of 17 1/2%, or the net sum of $40,211.85, on account of which $29,000 had been paid, leaving the balance due $11,211.85, and that, in addition, plaintiff is indebted to defendant for materials sold to it, but not removed, in the amount of $3,074.82, or a total sum of $14,286.67. There was also a count for deceit, based upon plaintiff's asserted knowledge of the error.
In the schedule, the price of certain rough lumber was stated to be "$55.00 M." Evidence was adduced, indeed it was not denied, that this meant $55 per thousand board feet, but the calculation made by defendant was on the basis of $55 per thousand pieces or units, making the extended total $1,513.84 instead of $15,082.57.
Concededly, this error of computation was defendant's, uninduced by plaintiff. And we find no substantial basis in
the proofs for the conclusion that plaintiff was aware of the miscalculation until defendant refused to complete delivery of the materials sold, after it had paid in full the stated price of $29,000. The learned trial judge so found on plaintiff's motion to direct a verdict in its favor on the complaint and to nonsuit defendant on the counter-claim. In sum, the contention is that the materials were in fact sold at the unit prices stated in the ...