On appeal from the Superior Court, Law Division.
For reversal -- Chief Justice Vanderbilt, and Justices Case, Wachenfeld and Burling. For affirmance -- Justices Heher, Oliphant and Ackerson. The opinion of the court was delivered by Case, J.
The case was certified from the Appellate Division list of causes on our own motion. The question for decision goes to the extent and effect of the pre-trial order.
Edward E. Jenkins, Jr., assignee, sued to recover on a claim growing out of the shipment by the defendant to Paul S. Jones Company, Inc., which we shall call the plaintiff, and the return to the shipper of a part thereof as defective and unmarketable. Defendant answered and plaintiff replied. Thus the pleadings developed issues. Following the pre-trial conference the court signed this order:
"This is an action arising out of an alleged breach of contract, plaintiff charging that before discontinuance of an agreement between the parties with reference to the distribution of Devine Plastic Ware, another agreement was entered into in writing on August 12, 1947,
under the terms of which plaintiff returned defective merchandise and defendant issued credit memorandum No. 3 in the sum of $2,216.97 and credit memorandum No. 4 in the sum of $3,451.80; said agreement further providing that credit was to be paid by monthly deduction from payments to become due for future shipments; that certain conditions with respect to shipments would be corrected, and that the goods shipped would not be defective.
"Plaintiff charges that the actual amount due at the time of the issuance of the credit memoranda was $8,379.92, against which a credit should be allowed of $2,816.10 and a further allowance should be made in the sum of $442 for advertising, leaving a balance of $5,121.82 allegedly due and owing.
"Plaintiff charges that defendant breached the agreement, in that the goods were improperly shipped and that the goods were defective, so that plaintiff was forced to discontinue business relations with defendant and thus was prevented from using the credit memoranda previously issued.
"Defendant denies any breach of agreement and maintains that it complied with the same in all respects and has in no manner prevented plaintiff from using the credit memoranda issued and that it is and has been at all times, ready, able and willing to perform.
"It is stipulated by counsel that all exhibits referred to in the pleadings may be admitted in evidence without formal proof.
"Trial date, June 21, 1949."
Judgment on jury verdict went to the ...