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Louis A. Cross Co. v. Margolis

Decided: January 12, 1948.

LOUIS A. CROSS COMPANY, A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MORRIS MARGOLIS, INDIVIDUALLY AND TRADING AS FOOD CENTER, DEFENDANT-APPELLANT



On appeal from the Camden County Court of Common Pleas.

For the plaintiff-respondent, Abraham Greenberg.

For the defendant-appellant, Meyer L. Sakin.

Burling

The opinion of the court was delivered by

BURLING, J. This is an appeal of the defendant from a judgment for the plaintiff entered in the Court of Common Pleas of Camden County for $1,531.94 against the defendant.

It was a summary judgment resulting from the granting of a motion to strike the answer and counter-claim of the defendant and support of the complaint by the affidavit of the plaintiff. Grounds of appeal, six in number, were filed. No. 4 thereof reads as follows:

"4. Because the court below erred in that it decided as a matter of law that the relationship between the parties was that of a partnership and that the said agreement, therefore, was an ultra vires act of the plaintiff, and that said plaintiff was not bound thereby."

No. 5 will be dealt with in the disposition of this appeal, and is as follows:

"5. Because the court below erred in deciding that the matters set up by the motion did not present an issue of fact."

The complaint sought a recovery upon a sale of meat products by the plaintiff to the defendant, and the supporting affidavit alleged the furnishing of the same on the days of September 23d, 24th, 28th, 1946. An answer of general denial was filed and a counter-claim alleged that the parties had entered into an agreement of joint adventure and that this was breached to the damage of the defendant in excess of the amount claimed by the plaintiff in his complaint.

From a reading of the pleadings and affidavits submitted in the proceedings, it appears to the court that it is one for the application of the rule that courts are not prone to grant a motion to strike out pleadings unless it is evident that no factual issue has been raised by the pleadings, or there is no legal dispute. As a ...


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