McGeehan, Jayne and Wm. J. Brennan, Jr. The opinion of the court was delivered by McGeehan, S.j.a.d.
Lawrence G. Bleichner and William J. Sheehan were jointly indicted, and at the trial in the Camden County Court the defendant Bleichner was convicted and defendant Sheehan was acquitted. Defendant Bleichner appeals from the judgment of conviction.
The indictment charged that Lawrence G. Bleichner and William J. Sheehan "being the contractors engaged to erect a certain dwelling house, to wit, a bungalow, on Walnut Street, Audubon, New Jersey, for one Edgar A. Heubel, and being entrusted as such contractors with the sum of ($2,930.00) two thousand nine hundred and thirty dollars, they, the said Lawrence G. Bleichner and William J. Sheehan, did unlawfully and fraudulently convert the said sum of two thousand nine hundred and thirty dollars ($2,930.00) to their own use, with intent to cheat and defraud the said Edgar A. Heubel, contrary to the provisions of R.S. 2:124-16."
"All moneys received by a contractor from the owner or mortgagee of real estate or any leasehold or other interest therein, while a building is being erected, constructed, completed, altered, repaired or having an addition made thereto, are hereby declared to be trust funds in the hands of such contractor to be applied to the amount of all claims due or to become due and owing from such contractor to all persons furnishing labor or materials to him for the erection, construction or completion of the building or any alteration, repair or addition thereto, and any other reasonable and necessary charge in connection with the carrying on and completion of the work on the building. Any contractor or any officer, director or agent of such contractor who pays or consents to the appropriation of such funds for any other purpose prior to the payment of all claims and charges for the payment of which such funds constitute a trust fund as above provided, shall be guilty of a misdemeanor."
On May 5, 1948, Edgar A. Heubel, the complaining witness, and Margaret, his wife, called at the defendants' place of business in Camden, in answer to an advertisement. There they met the defendant Sheehan, who told them that his partner Bleichner was the "contractor and builder in this organization" and that he would be in soon. When Bleichner came in, they discussed with him the building of a home.
They were shown a scale model of a five-room bungalow and agreed to have such a home built for them on a lot which they owned in Audubon. Defendant Bleichner then produced a printed form of contract headed: "William J. Sheehan Co., Building Contracting, 333 Market Street, Camden, New Jersey" and filled it out. This contract provided that a standard five-room bungalow would be completed for $6,930, which was to be paid by the Heubels in installments at specified times. This agreement was signed by the Heubels and by the defendant Bleichner. The Heubels paid $250 to defendant Sheehan, in defendant Bleichner's presence, at the time of the signing of the contract on May 5, 1948; and between May 5, 1948, and September 11, 1948, made additional payments of $2,680 to defendant Bleichner, and receipts for all the payments totaling $2,930, signed by defendant Bleichner, were endorsed on the back of the written agreement of May 5, 1948. The payments made by the Heubels not only met the required instalments under the agreement at the time, but were in excess thereof.
When the agreement was signed, Bleichner informed the Heubels that the house could be built within ten to twelve weeks. When the Heubels complained from time to time about the failure to start the construction, Bleichner gave various excuses. After the last payment by the Heubels in September, 1948, the defendants moved from their place of business and left no forwarding address. When the Heubels finally located them, the defendants said they would start immediately on the construction of the building. Shortly thereafter a cellar was dug, but nothing further was done on the construction. The parties stipulated that the value of all work done was $500. The demand of the Heubels for the return of the money paid was not complied with.
In his charge to the jury, the trial judge stated:
"If, on the other hand, you should find, after a consideration of the testimony in this case, that Bleichner and Sheehan were partners, and were in the contracting business, and that as a result of such relationship or association this man Heubel paid to them the sum of $2,930 for the erection and construction of a building and that they
failed to erect or construct the building, and those facts have been established to your satisfaction beyond a reasonable doubt, then I say to you you should return a verdict of guilty as against both of these defendants * * * you can find one guilty and the other innocent, or you may find both innocent, or, of course, ...