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Levenson v. Erxleben

Decided: January 17, 1947.

SAMUEL LEVENSON, TRADING AS PRUDENTIAL FLOUR CO., PLAINTIFF-APPELLANT,
v.
ALBERT W. ERXLEBEN, DEFENDANT-RESPONDENT



On appeal from the Supreme Court.

For the plaintiff-appellant, Samuel S. Ferster.

For the defendant-respondent, Mario Turtur.

Wachenfeld

The opinion of the court was delivered by

WACHENFELD, J. This is an appeal from a Supreme Court issue at the Circuit in which after trial a judgment for the defendant was entered on the verdict of a jury.

The defendant was engaged in the bakery business in Elizabeth, and the plaintiff alleges a written contract was entered into whereby the defendant agreed to purchase and the plaintiff agreed to sell 1,200 sacks of flour at a certain price; that the defendant breached this contract, whereby the plaintiff suffered damages. The making of the contract was denied by the defendant and it was asserted the signature in question was produced by fraud and misrepresentation.

The appellant on oral argument abandoned the first ground of appeal concerning novation, leaving the following issues to be disposed of: (1) Alleged error by the trial judge at the close of the case in refusing to charge as requested and refusing to recall the jury and give further instructions. (2) Abuse of discretion by the trial judge in denying an application for a rule to show cause why the verdict in favor of the defendant should not be set aside and a new trial ordered and the right to take depositions.

There were no written requests to charge submitted, but at the end of the court's charge and after the jury had been excused, counsel for the appellant, praying an exception, amongst other things said: "Now, I contend that my request to charge was set forth in the case of Murphy v. Cane, in 82 A. 854, where the court in one syllabi said this. * * *"

The court: "I want the record to show that the court had no requests to charge submitted to him," to which counsel replied:

"Of course, I called your Honor's attention to it before the charge."

The trial court then disposed of the matter by putting upon the record the following: "Let the record show that at the conclusion of both summations counsel for the plaintiff did submit the Atlantic Reporter containing citation of Murphy v. Cane but at no time was there any written request to charge and certainly no written requests were submitted before summation."

The rule of procedure is settled that matters of law which either party desires to have charged shall be submitted in writing to the court before the charge is begun. Mead v. State, 53 N.J.L. 601; Dunne v. Jersey City Galvanizing Co., 73 Id. 586; Lambert v. Trenton and Mercer County ...


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