On appeal from the Superior Court, Law Division, Somerset County.
For reversal in part and affirmance in part -- Justices Case, Oliphant, Burling and Ackerson. For reversal -- Chief Justice Vanderbilt and Justice Heher. For affirmance -- Justice Wachenfeld. The opinion of the court was delivered by Oliphant, J.
[7 NJ Page 127] James P. Johnson of Bucyrus, Ohio, was a seller of livestock and by telephonic communication sold four shipments of cattle to the defendant Hoffman, of Flemington, New Jersey, during the fall of 1946. Of these shipments three were accepted and paid for by the defendant, but no cash payment was made for the shipment of October 30, 1946. Two of the shipments were made prior to and one after that of October 30. At the time when the plaintiff shipped the carload which is in issue in his complaint the defendant then owed the plaintiff for the immediately
preceding shipment. Defendant, after receipt of the shipment of October 30 paid for the prior shipment and also one made later on November 4.
On February 16, 1949, Johnson brought suit in the Superior Court, Law Division, Somerset County, in three counts: book account, express contract and quantum valebat as to the October 30 shipment. Defendant's answer amounted to a general denial together with a separate defense setting up that whatever money may have been owed to the plaintiff had been paid by credits allowable on the other shipments. The answer contained a counterclaim in five counts in which the defendant alleged certain representations and warranties had been made by Johnson respecting all of the shipments, i.e., that the cattle were marketable, in good condition and fit for resale, and asserted an account stated indicating a balance due the defendant. The last count contained this significant language: "When each of the aforementioned loads of cattle arrived the said defendant contacted said plaintiff, complained of his failure to meet the required specifications and was instructed by said plaintiff to accept said cattle and livestock, to sell same and that he would credit on said book account the loss which he sustained by reason of the fact that said cattle did not meet the required specifications."
Plaintiff's reply consisted of admissions and denials and these separate defenses to the counterclaim: (1) that the sales were made free of any warranties; (2) that the plaintiff had waived any right to plead breach of warranty because of his actions with respect to the shipments subsequent to the receipt thereof, and (3) a denial of any agreements whereby plaintiff was to make any allowances or give any credits to the defendant against any of the shipments.
On October 29, 1949, Johnson died and his widow, the executrix of his estate, was substituted as party plaintiff.
A trial of the issues was had on November 6, 1950, whereat the plaintiff's bookkeeper testified that from the decedent's books there was due from the appellant on the
sale of 64 calves, the sum of $3,301.65. The invoice was marked in evidence and contained the following provisions as to warranty:
"3. Seller does not warrant said animals as free from disease or assume any responsibility whatever for death or loss of said animals subsequent to delivery.
4. It is expressly agreed that no representations or warranties other than those herein contained have been made by the Seller."
The plaintiff then rested. The defendant, in attempting to prove his case on answer and counterclaim, attempted to prove certain conversations he had with the plaintiff's decedent subsequent to the delivery of the cattle at the railroad siding in Flemington. The trial court ruled out such conversations as being in violation of R.S. 2:97-2 which prohibits testimony as to transactions with the decedent unless the representative of the decedent first offers ...