Conford, Freund and Haneman. The opinion of the court was delivered by Freund, J.A.D.
The defendant appeals in this breach of contract action from a judgment entered pursuant to a unanimous jury verdict for the plaintiff in the Passaic County District Court.
Plaintiff Ench operates a construction business and in 1954 was at work on a project in Glenside, Pennsylvania. At that time he was represented by an attorney, the defendant. In February 1954 Ench had borrowed $1,000 from one Donohue to defray expenses on the Glenside project and had given Donohue a check post-dated to March 17, 1954. The loan not having been repaid, Donohue's representative wrote to Ench on May 10, 1954 that he was "not going to sit still on that check." On the same date, plaintiff responded by letter that the failure of the township (apparently
Glenside) to pay moneys owed him had held up payment of his bills, that his bonding company had unjustifiably refused to pay the Donohue and other claims, but that he had instructed his attorney to institute action against the bonding company to recover such claims.
Ench testified that on May 12, 1954, at his office in Paterson, he handed a $1,000 check, made payable to himself, to Bluestein, with instructions to "put this check in the trust account and pay the money to James Donohue." His grievance in this action is that Bluestein never paid Donohue, with the result that an assignee of Donohue's estate brought suit against plaintiff in 1956 on the unpaid debt and recovered $1,000 plus costs of $41.84. His effort to implead Bluestein as a third-party defendant in that action having failed on motion of the plaintiff therein, Ench paid that judgment himself. He now contends that such payment represents his damages consequent upon defendant's breach of agency.
Defendant Bluestein denied ever having received instructions from Ench to pay off Donohue with the $1,000 check. He testified:
"Well, he came in the next morning after he had gotten a check and gave it to me and told me he needed five hundred dollars that day for the payroll and there was a payment due on his second mortgage on Water Street which Jack Abramowitz was attorney for and he was in the midst of foreclosing that and it was under sheriff's sale, that had to be met. He said apply this to that and that was it."
Bluestein claimed, then, that after May 12 he had given $500 in cash to plaintiff or his sister to meet Ench's payroll and had used the other $500 to reimburse himself for a $500 check given on May 13 to the attorney representing the second mortgagee. This issue of the money having been spent for plaintiff's other debts was raised by the defendant in his answer.
Corroborative of the defense that no specific instructions to pay Donohue had been given by Ench was the testimony of attorneys Rowitz and Weisser. Rowitz, representing
Donohue in collecting the debt from Ench, testified that when he had seen Ench, in July 1956, to make arrangements with him to pay off the debt, Ench never mentioned that Bluestein was connected with the Donohue transaction. And Weisser, who had heard most of the conversations between Rowitz and Ench with respect to the Donohue debt, testified that he "never heard Mr. Bluestein's name mentioned."
Ench denied that Bluestein spent this particular $1,000 for his, Ench's, benefit. He denied having received $500 from Bluestein for his payroll. And he testified that, while $500 toward the second mortgage had indeed been paid by Bluestein, that payment was part of a course of dealing between these two parties and had been made not from the $1,000 ...