Goldmann, Freund and Conford. The opinion of the court was delivered by Freund, J.A.D.
The plaintiff manufactures and distributes cosmetic, hair and pharmaceutical preparations. The defendant makes injection and compression molds, and plastic articles therefrom.
The plaintiff charges that on July 28, 1950 it ordered from the defendant a mold to be constructed to produce plastic
combs for miniature brushcombs, and 50,000 of the combs to be made from such mold. There was no written agreement between the parties other than the order on the letterhead of the defendant, calling for delivery of the mold in eight weeks, at a cost of $3,100, which sum the plaintiff paid to the defendant on or about February 26, 1951.
Count One of the complaint charges that the mold was improperly made, seeks the return of the $3,100 paid therefor and states that the defendant "did represent and warrant through its agents * * * that it had the experience, qualifications and skill to make, create and design a mold for the plaintiff, to wit, a six cavity injection mold which would be capable of being used in the production of millions of combs of Polystyrene as per example and specifications" and "did represent and warrant that said mold when so made, created and designed could be used by them and others in the production of combs * * *." Count Two of the complaint seeks to recover overcharges allegedly paid by the plaintiff to the defendant for plastic combs delivered. The third and fourth counts of the complaint were voluntarily withdrawn by the plaintiff.
The defendant at the close of the plaintiff's case moved to strike the first count of the complaint, contending that its allegations were based on an express warranty and that the plaintiff had submitted no proofs to support such an allegation. The court denied the motion, saying "the conduct inter partes is evocative of an implied warranty." On a motion for dismissal at the conclusion of the entire case, the court said that the "pleading in count one is broad enough to evoke a warranty."
The jury found in favor of the plaintiff for $3,100 on the first count, and in favor of the defendant on the overcharges. The defendant's motion for a new trial, on substantially the same grounds now advanced on appeal, was denied. This appeal is from the final judgment in favor of the plaintiff and from the denial of the motion for a new trial, on the grounds that the court erred in denying the motion to strike the first count of the complaint, in admitting testimony by two witnesses
who it alleges were not qualified as experts, in failing to properly instruct the jury as to the law and that the verdict was the result of bias, passion, prejudice or mistake.
The defendant contends that there can be no implied warranty under the Uniform Sale of Goods Law, R.S. 46:30-1 et seq. , because the contract was not a "sale," but an agreement for work and materials, relying on Finney v. Apgar , 31 N.J.L. 266 (Sup. Ct. 1865). That case dealt with the question of whether such a contract constitutes a sale for purposes of the statute of frauds, and is not authority for the defendant's contention. Metropolitan Lumber Co. v. Ivers-Lee Co. , 6 N.J. Misc. 304 (Sup. Ct. 1928), also cited by the defendant, is predicated upon a misreading of the holding in the Finney case, supra , and cannot be held to be an authoritative statement of the applicable rule of law.
The agreement between the parties related to a mold, something that was to be manufactured and not an article in solido. R.S. 46:30-11 provides for existing or future goods to be manufactured or acquired after the making of the contract to sell. Rhind v. Freedley , 74 N.J.L. 138 (Sup. Ct. ...