Eastwood, Goldmann and Francis. The opinion of the court was delivered by Goldmann, J.A.D.
Defendants appeal from a judgment entered in the Law Division of this court after jury verdict in plaintiff's favor in an action for breach of contract dated July 12, 1951 for the purchase of automotive equipment.
The parties had had dealings looking to the sale and purchase of equipment in the months preceding the events about to be recounted, but the negotiations fell through. Particularly, plaintiff had, through Richard A. Ench, its president, tried to buy two dump trucks and possibly other equipment from Lorenzo Motors in April 1951, for on April 26 Ench gave defendants his check for $1,000 on account, as well as a conditional sale contract signed by him but with the spaces usually reserved for the description of equipment sold, sales price, down-payment, trade-in allowance, deferred balance, finance charges, and the amounts and dates of instalment payments left blank. The check and the conditional sale contract figured in the July 12 transaction.
On that date the parties entered into a written agreement by which plaintiff purchased and defendants sold two Rex High Lift mixer drums mounted on G.M.C. No. 853 ten-wheel chassis, and two G.M.C. No. 703 chassis with dump bodies, the purchase price being $63,260.80. Defendants credited plaintiff with a down-payment of $7,967.44, made up of the $1,000 check given them on April 26 preceding, and plaintiff's check of $6,967.44 dated July 12. Defendants allowed plaintiff $11,010.80 as the trade-in value of five Federal dump trucks. The agreement provided that the balance remaining was to be paid by "24 notes monthly."
According to Ench, he instructed August Lorenzo, acting for Lorenzo Motors, to fill in the conditional sale contract given him on April 26, so that it would provide for payment of the balance due under the July 12 purchase in 24 equal monthly instalments. The circumstances relating to this instrument will be discussed hereafter. It suffices at this point to indicate that the conditional sale contract, as filled in by defendants, provided for payment of the balance in 24 instalments, as follows: 6 monthly payments of $4,000 each, beginning August 12, 1951; 17 monthly instalments of $1,422.03; and a final instalment of $1,421.95.
The two trucks with mixer drums mounted thereon were delivered to plaintiff's place of business in Paterson on the evening of July 12. The two dump trucks have never been delivered. Defendants have refused to accept delivery of the five "trade-in" dump trucks tendered by plaintiff.
At noon on July 14, 1951 defendant August Lorenzo, without prior notice to plaintiff and without court writ, went to a sign shop in Paterson where plaintiff had left the trucks in order to have its name painted thereon, and repossessed the two trucks. Lorenzo Motors subsequently sold this equipment. Plaintiff at once instituted suit in the Chancery Division of this court.
The amended complaint is in four counts. The first seeks specific performance of the July 12 agreement and $10,000 damages, an injunction restraining defendants from
disposing of the equipment described in the agreement and, if specific performance is denied, judgment of $25,000. The second count charges breach of agreement and demands judgment of $7,967.44, the amount of the down-payment, with interest. The third count demands judgment of $50,000 for damages suffered by plaintiff who, relying on the agreement, entered into contracts with third parties for supplying material, work and labor which it has been unable to complete because of defendants' failure and refusal to deliver the equipment, despite their knowledge of these contracts and the fact that plaintiff relied upon their delivering the equipment. The fourth count likewise demands judgment of $50,000 because defendants' breach of the agreement has compelled and will compel plaintiff to hire trucks of comparable specifications in order to complete contracts undertaken with third parties. Defendants' answer to the amended complaint sets up a number of separate defenses, the most important being that the July 12 agreement was superseded by a formal conditional sale agreement, with which plaintiff has failed and refused to comply.
Plaintiff obtained a temporary restraining order on September 13, 1951, subsequently vacated on motion of defendants when the Chancery Division judge entered an order transferring the action to the Law Division. The pretrial order was signed December 14, 1951. Thereafter, defendants served notice of motion, returnable March 7, 1952, to amend the pretrial order and to file a counterclaim. The appendix does not contain this notice of motion; there is nothing in the appendix nor in the file to show what action was taken by the court. It would appear, from an endorsement on the counterclaim filed March 11, 1952, that the court on March 8 permitted the filing of that pleading.
Under their counterclaim defendants demand judgment of $10,562.18, representing loss on the sale of the two trucks, expenses incurred in the recapture and sale of the trucks, including storage, insurance premiums, attorneys' fees and
other incidental costs, and loss by depreciation in the value of the two dump trucks. Plaintiff filed its answer to the counterclaim, the endorsement indicating that it was filed by court order of March 10, 1952. That order does not appear in the appendix or in the file. The pretrial order was amended on April 30, 1952 to show that plaintiff also claimed ...