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Nawyn v. Kuchkuda

Decided: December 7, 1956.


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


The defendant, Correct Laundry Company, appeals from a judgment for $3,471.55 taken against it by the plaintiffs in the Bergen County District Court. With the consent of the attorneys, the case had been transferred to that court from the Superior Court. With their consent also, the case was dismissed as to the defendant, William Kuchkuda.

Nine counts are set up in the complaint, but we need concern ourselves only with the fifth count. The facts are somewhat involved, and for some of them we have had to go to the 437-page transcript of testimony, much of which has not been included in the appendix.

In July 1949 the plaintiff Nawyn and the defendant Correct entered into a written agreement (designated in the briefs as Contract No. 1), whereby Nawyn agreed to buy from Correct a laundry route and a laundry truck for $5,000, payable $500 through a note due September 22, 1949 and the balance at the rate of $25 per week. Between July 1949 and February 1, 1951 Nawyn paid Correct on account of

his obligation under the contract $2,315 of principal and $56.55 of interest. Further, as provided by the terms of this contract, Nawyn collected the work on the route, turned it over to Correct and retained as compensation 33% of Correct's retail rate for the work delivered.

In May 1950 the plaintiff Braunius entered into an oral agreement (designated Contract No. 2) with Correct for the purchase of another route and truck for $7,000 on very similar terms. Between May 1950 and February 2, 1951 Braunius paid Correct $1,100 on account of his obligation under this contract. Furthermore, he collected and turned over to Correct the work on the route, retaining, as Nawyn did, 33% of Correct's retail rate.

The fifth count is based on Contract No. 3. According to the findings of the trial court, this was an oral agreement made in February 1951 between Correct, on the one hand, and the plaintiffs Nawyn and Braunius as partners, on the other hand, under which the plaintiffs were to buy the two routes and trucks above mentioned and two additional routes and three (as Correct admits in a counterclaim and the parties say in their briefs, although the testimony is by no means clear whether it was two or three) additional trucks, all for a total price of $19,000. The court found, in effect, that Contract No. 3 supplanted Contracts Nos. 1 and 2 and that the parties agreed that the foregoing payments totalling $3,471.55, including the payment of $56.55 of interest, were to be applied against the $19,000. Correct denies that there was any mutual assent among the parties as to Contract No. 3. Incidentally Correct does not deal with this interest of $56.55. Hence we will not do so either.

Assuming that the parties entered into a third contract in February 1951, we still are confronted with a dispute as to what were its terms. The plaintiffs contended below that under Contract No. 3 the parties agreed that the balance of the $19,000 due under the contract (after crediting thereon the $3,471.55) was to be paid off by applying thereto the sum of $100 a week. This sum, so plaintiffs claim, was to be credited to them from and after February 1951 by way

of compensation for services allegedly rendered by Nawyn from then on while assisting Correct in the management of its shop. The trial court, however, rejected plaintiffs' claim, holding that they had not established, through a preponderance of the evidence, that they were entitled to any compensation for these services. There is no appeal from this ruling.

One other alleged provision of Contract No. 3 requires consideration. For a year and eight months after February 1951 the plaintiffs operated the four routes, dividing the proceeds therefrom with Correct on this basis, namely, 35% to themselves and 65% to Correct, and not, as under Contracts Nos. 1 and 2, on a 33%-67% basis. Plaintiffs claim that this arrangement was part of Contract No. 3.

Correct however says -- and this is one of its important contentions -- that this arrangement was a part of a so-called bobtailer's agreement it made with the plaintiffs in February 1951. Correct claims that under another phase of this bobtailer's agreement, the plaintiffs in February 1951 rented (in effect) each of the five trucks from it for $500 down and $12.50 a week. The court rejected this claim, apparently not believing the testimony offered on Correct's behalf. There are two circumstances which go to support the court's conclusion here, quite beyond this matter of credibility. Under Contracts Nos. 1 and 2, Nawyn and Braunius each of them had had the use of a truck without being chargeable for any rental therefor unless he defaulted under the contract (see paragraph 8 of Contract No. 1, herein discussed) -- or unless certain other contingencies occurred, none of which are pertinent here. That being so, it seems rather unlikely (for the proofs by no means indicate that the plaintiffs had met with any financial difficulties in February 1951) that plaintiffs voluntarily in February 1951 applied out of the ...

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