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Leitner v. Braen

Decided: June 27, 1958.

MAC LEITNER, PLAINTIFF-APPELLANT,
v.
SAM BRAEN, DEFENDANT-RESPONDENT



Stanton, Hall and Gaulkin. The opinion of the court was delivered by Hall, J.A.D.

Hall

[51 NJSuper Page 34] Plaintiff appeals from an adverse judgment of the Bergen County District Court sitting without a jury. The action was one for breach of an alleged oral contract to "sponsor" a bowling team or teams. No stenographic record was made below, so the appeal is before us on a statement of the evidence and proceedings (R.R. 1:6-3)

and the trial judge's findings of fact and conclusions of law (R.R. 7:16-3). There was no substantial dispute in the evidence as to what took place.

While the complaint alleged a detailed understanding that plaintiff agreed to form two bowling teams for participation in leagues during the 1955-1956 season under the sponsorship and name of the defendant, and the latter agreed to pay plaintiff the league entry fees, bowling fees, cost of bowling shirts with defendant's name lettered thereon, and the team's entry fee for the American Bowling Congress tournament in March 1956, the proofs were quite different.

Leitner and Braen were residents of the same town and casual acquaintances. They happened to meet in September 1955 in a local confectionery store and a conversation ensued in which plaintiff asked defendant to "sponsor" a bowling team during the coming season. Defendant said he would "go along," inquired as to the cost entailed, and was told by plaintiff it would comprise "the usual sponsoring fees." Braen, a local business man, had sponsored teams before and Leitner had organized teams under sponsorship in prior seasons, but there was no evidence of any such relationship between them previously. Braen asked that the team members wear shirts bearing the name of one of his business enterprises. Plaintiff testified that defendant agreed to sponsor two teams, but the latter said he agreed to sponsor only one. The trial court seems to have found that Braen's version was the true one and said that he did not know that two teams were operating under his name until he received the first bill shortly to be mentioned. There were no further discussions or conversations.

Plaintiff proceeded to organize a team which entered and participated in two leagues, one bowling on Monday night and the other on Friday night of each week. He paid the league entry fees, registration fee for the American Bowling Congress tournament and the cost of the shirts lettered with defendant's name. During November Leitner sent Braen a bill for $734, made up of the $250 entry fee for the Monday night league, the $64 entry fee for the Friday night league,

the entry fee for the tournament of $165, and the cost of bowling (presumably alley rental) for each team at $15 per week to the date of the bill.

Defendant immediately protested the size of the bill and the items included, and flatly refused to pay it, saying that he did not want to "buy bowling alleys." Finally, some time the following month after repeated demands, defendant, through his accountant, paid the bill, plaintiff being told at the time to "get lost" and "this is it." It was clear that the payment was without concession of obligation as to all the items included or their amount, and plaintiff was given to understand that it was being paid to be through with him once and for all. Obviously the dispute was not over the existence or recognition of any obligation on the part of Braen, but the extent of it. He apparently took the position that the extent of his pecuniary obligation under the agreement to "sponsor" did not embrace all of the items for which he was sought to be charged, and payment of the bill in full more than met his conception of his obligation for the full season.

Leitner, undaunted, continued the participation of the teams under defendant's name, and at the end of the season in June sent defendant a second bill totaling $1,659, which included all of the items of the first bill plus the cost of the shirts at $110 and the weekly bowling costs for the full year. Defendant refused to pay and plaintiff instituted this suit for the difference between the December payment and the total amount of the June bill.

The trial court denied a motion for involuntary dismissal at the end of plaintiff's case and gave judgment for defendant at the end of the entire case. He said in his conclusions of law made after the filing of the notice of appeal: "* * * there was not a complete meeting of the minds between the parties," defendant "had a right to terminate the arrangement" and payment of the first bill was a discharge of his "obligations."

During the trial plaintiff's attorney propounded questions to his client respecting other teams he ...


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