On appeal from the Monmouth County Court.
For affirmance -- Chief Justice Vanderbilt, and Justices Case, Heher, Wachenfeld and Burling. For reversal -- Justice Oliphant. The opinion of the court was delivered by Wachenfeld, J.
The question here is one of procedure and the inquiry is whether or not, on defendants' opening, the court can direct a verdict for the plaintiffs before any evidence is taken. The case was certified here on our own motion.
The action was commenced in the Monmouth County Court for the recovery of money due under a contract for the sale and delivery of certain garage equipment. The defendants' answer denied the matters set forth in the complaint and alleged that, as a condition precedent, the plaintiffs agreed to deliver the garage equipment and to execute a bill of sale for the same, that the plaintiffs failed to deliver the equipment and the defendants were therefore under no obligation to perform their part of the contract.
The contract between the parties was admitted in evidence at a pre-trial conference and marked Exhibit P-1. It was dated March 18, 1946, and provided for the sale to the defendants of a garage building and land in Union Beach for the sum of $6,000 and in addition stipulated:
"The parties of the first part do hereby agree to sell and deliver to the parties of the second part all personal property now contained in on and about the said premises with the exception of the hydraulic jack for the sum of One thousand ($1000.00) Dollars to be paid simultaneously with the delivery of the deed for the said premises as hereinbefore mentioned; and the parties of the second part do hereby agree to pay to the parties of the first part the sum of One Thousand ($1000.00) Dollars as the purchase price for the personal property as hereinbefore stated, and agree to pay the same simultaneously with the delivery of the deed for the premises hereinbefore mentioned.
"Said personal property to be conveyed free of any and all liens of any nature whatsoever.
"AND IT IS FURTHER AGREED, by the parties to these presents, that the said party of the second part, their heirs and assigns, may enter into and upon the said land and premises on the 18th day of March, 1946, next ensuing the date hereof, and from thence take the rents, issues and profits to them and their use.
"AND IT IS FURTHER AGREED, by the parties hereto, that the said Deed of Warranty shall be delivered and received at the office of Edward Farry, Jr., 24 West Front Street, Keyport, New Jersey, between the hours of 9:00 in the forenoon and 5:00 o'clock in the afternoon on or before the 1st day of May."
The real estate part of the transaction was not in issue as the transfer of the property had been completed and the consideration paid. This was commented on in the plaintiffs' opening and counsel then said:
"After the parties arrived at the office of Mr. Farry and entered into the contract for the sale of the personal property -- and from now on I will confine my remarks purely to the garage equipment and forget the real estate transaction, as I explained to you, because that was paid for and that is out -- they entered into some discussion about price and agreed to it and then signed the papers. Delivery was then made. We contend there was nothing more we had to do with respect to that personal property. The transaction was complete and binding. However, in order to get the hydraulic jack out of the garage, Mr. and Mrs. Orr and Mr. Farry suggested that we go down to the garage in Union Beach, which is some two or three miles from Keyport, take the hydraulic jack and leave the key at the home of Father Slattery. We will show you we went to the garage, arrived there around four o'clock, spent some ten or fifteen minutes, saw everything was in ...