On appeal from the Bayonne District Court.
For the plaintiffs-respondents, Samuel E. Kresch and Ben M. Horwech.
For the defendant-appellant, Cyril J. McCauley.
Before Justices Case, Bodine and Perskie.
The opinion of the court was delivered by
CASE, J. Plaintiffs, alleging a breach, sued for recovery of payments made on a contract for the sale of real estate "together with bungalow (shell) erected thereon with chimney, driven well and hand pump." At the trial defendant moved for a direction of verdict on plaintiff's opening. The court denied the motion and, sitting without a jury, thereupon gave judgment to plaintiffs in the liquidated amount disclosed in the opening to be due. Defendant appeals and
sets up error in (1) the court's denial of the motion for directed verdict and (2) the entering of judgment on plaintiffs' opening without the taking of testimony.
It he opening plaintiffs' attorney said in part:
"The plaintiffs claim that the defendant did not erect or deliver the bungalow in accordance with its written agreement. In the contract, after describing the lands by metes and bounds the contract states 'Together with bungalow (shell) erected thereon with chimney, driven well and hand pump.' We maintain that the defendant did not deliver the bungalow (shell) as set forth in the contract * * *."
In arguing for the direction defendant's attorney based his contention upon proposition that plaintiffs were bound by a contract which could not be varied by parol testimony:
"It is obvious that he (plaintiffs' attorney) intends to alter the terms of a written contract by parol evidence which is contrary to the law as enunciated in this state in the case of Naumberg v. Young, 44 N.J.L. 331, * * *."
We think that the defendant was not entitled to prevail upon a prognostication of the character of proof plaintiffs would use in proving their case. Perhaps the contingency anticipated by the defendant would have occurred had the trial proceeded, in which event defendant would have been in position to object to the evidence and to submit its authorities to the court; but under the strict rule enjoined upon the movant in making a motion for a nonsuit or for a direction of verdict we conclude that the court below was not obliged to assume that plaintiffs would need to violate the rules of ...