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Fannie Naples Trading v. McCann

Decided: February 27, 1953.

FANNIE NAPLES TRADING AS NAPLES EXCAVATING COMPANY, PLAINTIFF-APPELLANT,
v.
HARRY MCCANN, DEFENDANT, AND POIRIER & MCLANE CORPORATION, A NEW YORK CORPORATION, DEFENDANT-RESPONDENT



Eastwood, Bigelow and Jayne. The opinion of the court was delivered by Eastwood, S.j.a.d.

Eastwood

At the conclusion of the trial of the entire case, the Law Division entered a judgment of involuntary dismissal in favor of the defendant Poirier and McLane Corporation, and against the plaintiff Fannie Naples, trading as Naples Excavating Company (hereinafter referred to as "Naples"), with prejudice and without costs. A verdict of $5,000 damages was returned by the jury in favor of the plaintiff against the defendant, Harry McCann. Naples appeals from the judgment of dismissal.

Poirier and McLane Corporation entered into a contract with the New Jersey State Highway Commissioner to build

a section of New Jersey State Highway No. 25, designated as Section 32A. Thereafter, that corporation contracted with Harry McCann for the delivery on the site of construction, of certain sand and fill materials, respectively called "sub base" and "borrow," under the terms of which payment was to be made according to the volume of materials in place in the roadway as calculated by the state highway engineers. McCann, in turn, contracted with Naples for the latter to deliver the sand and fill materials to the site of construction.

In longhand on a copy of McCann's agreement with the McLane Corporation Naples wrote "Our Price Sub base 87 1/2 cent Borrow 60 cent," which memorandum was signed by McCann and Naples. The materials were hauled and delivered until about mid-September, when Naples claims that a dispute arose as to the amount of money which she was to receive. This dispute was apparently resolved when Naples was assured that a proper adjustment would be made the following month, whereupon she resumed deliveries.

On or about October 16, 1946 plaintiff suspended deliveries, asserting that she failed to receive the payment due her. The following day Naples contends that she entered into an oral agreement with Poirier and McLane Corporation whereby the latter agreed to pay for all materials which had been delivered to the job and all future deliveries, in consideration of which she immediately resumed deliveries of the building materials and continued to do so until the end of October, when she again discontinued the deliveries of sand because her demands for payment were not met. It is conceded that no stoppage in the delivery of "borrow" or fill material was occasioned, because there was no dispute with respect thereto.

Naples alleges that compensation for the delivery of sand was to be based upon her own calculations; that she had delivered 21,179 cubic yards of the said material and that she was entitled to recover $7,803.25, as the balance due and unpaid for sand deliveries. Subsequently, McCann brought suit against Poirier and McLane Corporation in the Superior Court, Law Division, for the recovery of monies allegedly

due McCann. This suit was settled prior to trial and a stop notice having been filed by Naples with the New Jersey State Highway Commissioner, a check in the amount of $393.78 was forwarded to plaintiff's attorney as her share of the McCann-Poirier Company settlement. This check has been held and unused.

The defendant Poirier and McLane Corporation denied making any oral agreement assuring plaintiff of the payment of all materials furnished at the site as alleged.

The plaintiff argues that the trial court erred in granting defendant's motion for dismissal, on the ground that there was evidence and favorable inferences to be drawn therefrom supporting plaintiff's contentions on the issue of a contract between plaintiff and the corporate defendant and the amount due thereon.

Our review of the record discloses the written contract between Naples and McCann, formulated by endorsement as to terms upon the agreement between McCann and the corporate defendant and that Naples had delivered the building materials and received payment therefor up to the alleged breach of the agreement by McCann's failure to make the proper payments for sand deliveries. Plaintiff's husband, Patsy Naples, testified that upon stoppage of delivery in the building materials two agents of Poirier and McLane Corporation assured him that if he would resume the hauling work the company would see that Naples was paid for all past deliveries as well as future deliveries. Patsy Naples asserted that thereafter hauling operations were resumed under the agreement with the Poirier ...


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