Gaulkin, Kilkenny and Herbert. The opinion of the court was delivered by Kilkenny, J.A.D.
In this suit to recover a balance due for goods sold and delivered, the Superior Court, Law Division, sitting without a jury, rendered a judgment in plaintiff's favor for $15,929.35, and defendant appeals.
Plaintiff's complaint alleged that between January 2, 1958 and April 25, 1958 he sold and delivered merchandise to the
defendant, having a value of $16,853.53; that between June 11, 1958 and October 6, 1958 defendant paid on account of said goods the sum of $924.18, leaving an unpaid balance of $15,929.35; and that the defendant failed and refused to pay this balance.
Defendant, a Pennsylvania corporation, filed a formal appearance, the action having been initiated by a writ of attachment. By its answer defendant admitted that between January 2, 1958 and April 25, 1958 "it made certain purchases from the plaintiff," but left plaintiff to his proof of the amount thereof. It also admitted "making payment on account of purchases," without denying the figure of $924.18 in the complaint. The answer then denied "being indebted to the plaintiff in the amount claimed." The implication of the answer was, "I owe you some money for goods purchased from you, but not as much as you say." No affirmative defenses were pleaded.
The pretrial order set forth plaintiff's factual contention as follows:
"Between the dates of Sept 1957, and April, 1958, the plf sold to the deft goods and merchandise having a value of $16,853.53. The deft has paid the sum of $924.18 leaving a balance of $15,929.35, due and owing for the goods purchased by the deft, which amount the deft has failed and refused to pay."
These allegations were substantially the same as those in the complaint, except that the beginning date of the transactions was shifted backward from January 2, 1958 to September 1957. There was no formal order of amendment. Defendant's factual contention as to nonliability, as phrased in the pretrial order, was simply and solely:
"Deft while conceding that it has had contractual relations with plf, denies being indebted to plf at this time."
Unlike the implication of some indebtedness found in the answer, the inference from defendant's contention in the pretrial order was that it owed plaintiff nothing at the time
thereof. There were no admissions in the pretrial order. The legal issues to be determined at trial were ...