Decided: June 14, 1944.
SCHWARTZ & NAGLE, INC., RESPONDENT,
LANGAR TRANSPORT CORP., APPELLANT
On appeal from the Second Judicial District Court of Hudson County.
For the appellant, Nathan Baker.
For the respondent, Louis L. Feinseth.
Before Justices Parker, Heher and Colie.
[131 NJL Page 599]
The opinion of the court was delivered by
PARKER, J. This is the second appeal in this case; a former judgment for the plaintiff below was reversed, in 130 N.J.L. 562, for error in striking the second count of the counter-claim for the alleged value of used automobile tires claimed to have been returned. The cause accordingly went back for a new trial, and the issue of fact with regard to the counter-claim, the only matter in dispute, was whether the defendant was entitled to credit for three used tires as "returned." It was undisputed that six used tires had been delivered to the plaintiff for "adjustment," that three had been "adjusted," and that plaintiff's claim was for the cost of adjusting them. It was further undisputed that the other three tires had not been either adjusted or returned, nor had defendant credited any allowance for them. The evidence for defendant, however, was, that plaintiff's agent in charge of the matter advised defendant's agent that they were so worn as to be worthless, asked whether they should be returned, and was told to "junk" them as without value; and that this was done. The issue was one of fact; whether there was an agreement to make an allowance for used tires, or an instruction to discard them as junk. The District Court found that "defendant had failed to prove his counter-claim;" and that finding is impregnable here. Marten v. Brown, 80 N.J.L. 143; affirmed, 81 Id. 599.
The judgment will be affirmed.