Jacobs, Bigelow and Jayne. The opinion of the court was delivered by Jayne, J.s.c.
The amount of money involved in this case is relatively inconsiderable. It is less than $100. Obviously, the expense of prosecuting this appeal is incurred in quest of justice rather than in the expectant achievement of any personal pecuniary advantage. Concededly, justice is not qualified by the monetary importance or insignificance of the controversial issue.
The plaintiff sued to recover from the defendant the purchase price, less the initial down payment, of a set of books entitled The Smithsonian Series.
The defendant answering the state of demand averred (1) that at the time of the agreement "the authorized agent of the plaintiff did display a certain sample book and did expressly represent that the set or series of books to be purchased and delivered to defendant would correspond exactly with the sample exhibited, whereas the set or series of books shipped by the plaintiff to the defendant did not in any reasonable manner correspond with the sample"; (2) that the agent did "expressly warrant and represent to the defendant that the set or series of books would be printed on a certain quality paper and contain a certain type of printing, whereas the books actually shipped by the plaintiff to the defendant were not in any manner of the quality paper or type of printing as expressly warranted by the agent of the plaintiff."
The defendant promptly rescinded the agreement, returned the books, and counterclaimed the amount of his initial deposit. R.S. 46:30-18, 20, 22, 75(1)(d), N.J.S.A.
It is immediately obvious that the nucleus of the controversy appertained to the quality and characteristics of the sample submitted to the defendant by the agent of the plaintiff and to the concurrent representations of the agent.
The plaintiff sought to sustain its cause of action by the testimony of two witnesses. The one, McAndrews, testified that he prepared the sample kits for the use of the salesmen and that if the sample contained in the kit was the one exhibited to the defendant, which he assumed was true, the books were in conformity with it. The other witness, Wilson, an authority on the quality of paper, was shown the sample selected for the kit and also the books, and testified that in his opinion the quality of the paper was substantially comparable and that the paper in both was of a fair grade of commercial paper.
The foregoing testimony and the sample produced by the witness McAndrews were admitted in evidence over the objection of the attorney for the defendant. Neither witness was present during the negotiations between the plaintiff's agent and the defendant, and neither pretended to have any personal knowledge of the nature of the sample actually displayed to the defendant or of any warranties and representations made by the agent to the defendant and his wife.
The defendant and his wife, who dealt with the agent of the plaintiff in the transaction, verified by their testimony the averments of the answer and the allegations of the counterclaim.
We perceive nothing in the summarization of the testimony of the witnesses appearing in the settlement of the state of the case which impugned the credibility of the testimony of the defendant, Dr. Greene, and the corroborant testimony of his wife, or which in any particular justified the repudiation of their testimony.
In such a situation, relevant proof was required of the plaintiff in order to vanquish a valid defense thus supported.
Despite the existing state of the evidence, the trial judge who heard the case without a jury ...