Decided: January 6, 1948.
DEFILIPPS CO., INC., PLAINTIFF-RESPONDENT,
KRISPY KERNELS CO., DEFENDANT-APPELLANT
On appeal from the District Court of Essex County.
For the plaintiff-respondent, Bergman & Rothbard (A. Robert Rothbard, of counsel).
For the defendant-appellant, Sandles & Sandles (Morris M. Ravin, of counsel).
Before Justices Bodine, Heher and Wachenfeld.
[136 NJL Page 352]
The opinion of the court was delivered by
WACHENFELD, J. Rule 155 (h), rules of the Supreme Court, was not complied with in this case but we have nevertheless considered it upon the merits. It was a District Court suit to recover the purchase price of two separate conveyors bought by the appellant. The plans were changed on several occasions on the order of the appellant's manager and after the delivery was made the machines were set up and operated, inspected and accepted, and a check for the balance due promised. A short time thereafter the purchaser notified the manufacturer of certain defects in the machines and the testimony shows he expended $75 to attempt to correct them, and there was evidence they could be corrected with a further expenditure of $25.
The trial court, sitting without a jury, determined there was substantial performance and acceptance of the machines, and although there were minor repairs to be made, consisting of supplying bronze bearings, correcting irregular channels and leveling the legs, and adding equipment for oiling, all could be done for the additional sum of $25. The court gave judgment for the contract price minus a fair allowance to make good these defects.
The acceptance and retention of the conveyors by the appellant justified this result. There was a mixed question of law and fact, with ample evidence to support the findings of the court below. We see no error injuriously affecting the appellant.
The judgment will be affirmed.