Goldmann, Freund and Haneman. The opinion of the court was delivered by Haneman, J.A.D. Freund, J.A.D. (dissenting).
[62 NJSuper Page 3] Plaintiffs appeal from a summary judgment dismissal of their action seeking the recovery of an alleged overpayment on a promissory note prior to maturity consisting of a claimed right to rebate for prepaid interest.
Counsel for plaintiffs has presented a truncated record consisting of a notice of appeal, complaint filed in the District Court, a short portion of the transcript of the argument on the motion (apparently three short paragraphs out of the trial judge's opinion, which would seem to cover at least two pages), excerpts from the clerk's judgment docket, copies of a note and receipts of payments -- in all covering eight pages. The defendant's appendix contains an affidavit of defendant's counsel, stipulation executed by plaintiffs' and defendant's counsel, contract between Pura-Tex Stone & Construction Co., Inc., and plaintiffs' mortgage from plaintiffs to Pura-Tex, and assignment of that mortgage to defendant, in all covering 13 pages.
Although no motion was made by defendant addressed to the inadequacy of the record, we call attention to the impropriety of plaintiffs' conduct. Plaintiffs should have reasonably assumed that defendant would rely upon each of the exhibits included in its appendix and plaintiffs should therefore have included them in their appendix, R.R. 1:7-1(f), made applicable to the Appellate Division by R.R. 2:7-1. Additionally, in their brief plaintiffs included a statement of facts covering five pages, consisting of a recital of unsworn facts not appearing in the record, under the guise of delineating what they would have proved at the trial. A large part of plaintiffs' factual argument deals with this recital and additional matters dehors the record. We cannot ignore this total disregard of the appellate rules without commenting that such conduct is deplorable. For the purpose of this opinion we shall restrict ourselves to those portions of the record properly before us as they appear in plaintiffs' and defendant's respective appendices, except as may hereafter be noted.
Prior to consideration of the merits of the appeal, some further comment is required concerning plaintiffs' brief. Plaintiffs' reference to the suggestion of the court, on the day set for trial, that if defendant desired to make a motion for a judgment on the pleadings on the ground
that the complaint did not set forth a claim upon which relief could be granted, it should be heard in chambers before a jury was chosen, seeks to convey an impression of judicial impropriety or prejudice. We hasten to point out that such a motion should have been made out of the presence of the jury and that there was no impropriety in the court's action. Also, plaintiffs' counsel was not taken by surprise, since he admits in his brief that defendant's counsel had advised him some time before the trial that "his client was under no duty to rebate." Nor did he then make any objection to the procedure. Any inference that plaintiffs' counsel was taken unawares or that the proceedings were in the nature of a star chamber session is completely without foundation, and reference thereto for colorable emphasis will be ignored.
On July 1, 1957 plaintiffs entered into a contract with Pura-Tex Stone & Construction Company, Inc. (Pura-Tex) for the furnishing of the following labor and materials on premises owned by them and known as 140 Stevens Avenue, Little Falls:
"1. Renail all loose present existing siding on exterior walls of house.
2. Replace any such badly rotted siding with suitable lumber as necessary.
3. Caulk four parts of window and door frames with special compound, using pressure gun.
4. Cover said wall with alum. clapboard (green).
5. Apply first grade siding to said exterior walls of house as follows:
6. Finish off window and door frames with special mouldings.
7. All corners to be finished with special caulk and seal all doors and windows.
8. All work to be done in a workmanlike manner.
Remarks: Tighten all loose boards. Cover entire exterior with alum. foil. Alum. trim around all doors and windows. Then cover entire exterior with alum. clapboard."
Pura-Tex as well guaranteed the labor and materials for 70 years.
On July 9, 1957 plaintiffs delivered a promissory note, as required by the above contract, in the face amount of
$2,218.80 payable in monthly installments of $36.98 over a period of 60 months, which note was secured by a mortgage on the Little Falls premises. The note contained no provision permitting payment in any fashion other than by the monthly installments over a 60-month period. Shortly thereafter, Pura-Tex endorsed said note and assigned the mortgage to defendant. Plaintiffs allege that on September 23, 1957 they paid defendant $1,000 on account of their indebtedness; on October 28, 1957 they paid $685; on November 1, 1957 they paid $533.80, a total of $2,218.80. Defendant thereupon cancelled the note and mortgage. Defendant disputes only the amount of the last above listed payment, alleging that plaintiffs paid only $101.10, the balance of $432.70 never having been paid, but representing a credit allowed by it for rebate of prediscounted interest. Defendant, although asserting, as noted, that it credited plaintiffs in that amount, denies that plaintiffs are as ...