Goldmann, Kilkenny and Collester. The opinion of the court was delivered by Collester, J.A.D.
Plaintiff Wesmount Country Club appeals from an order of the Bergen County District Court dismissing with prejudice plaintiff's complaint of an alleged breach of contract by defendant.
On March 14, 1962 defendant Nat Kameny signed an application for membership in the Westmount Country Club (Westmount) for the year from April 1, 1962 to March 31, 1963. Westmount operates a club in West Paterson, New Jersey, which provides facilities for swimming, including the use of cabanas, and a day camp for children of a member's family.
The annual charge which defendant agreed to pay totaled $875. The charge was comprised of the following items: membership fee, $50; a "Havana" cabana rental fee for defendant and his wife, $275; the use of the facilities for two additional members of the family, $150; day camp fees for two of defendant's children, $400. A payment of $25 of said charge was required to be made when the application was submitted.
Defendant paid the $25 and his application was accepted.
The application contained the following provisions:
"I agree to pay the balance in full, plus tax, on or before May 1, 1962. I understand that this application is not revocable after April 1, 1962 and that revocation is not effective, unless in writing delivered to the Club at its office in West Paterson, New Jersey; that no reduction or apportionment of fees will be made on account of withdrawal or expulsion at any time during the membership year.
This Agreement is not subject to modification except in writing. In the event of default on my part, the Club may, but is not obligated, to resell my membership. I agree to abide by existing and future Club rules and regulations. Selection of location will be adhered to whenever possible but is not construed to be a condition on this contract."
On June 4, 1962 defendant gave plaintiff written notice that he was cancelling his membership. In his answers to interrogatories he stated that neither he nor any member of his family made any use of plaintiff's services or facilities at any time during the 1962 membership season, or in any way asserted any membership rights in the club.
Plaintiff thereafter brought suit to collect the $850 balance allegedly due under the agreement. It was not claimed in the complaint that any part of the agreement constituted a liquidated damages provision. Defendant filed an answer denying liability and asserting as an affirmative defense, inter alia , that plaintiff had suffered no damage. Defendant sought by means of interrogatories to ascertain the extent of plaintiff's damages and whether said damages had been mitigated. Information sought in the interrogatories was (1) loss of profits claimed, (2) steps taken to use, sell or rent the facilities not used by defendant, and the money received for such use, (3) costs to plaintiff when such facilities were in use, (4) paid membership capacity of the club, (5) number of paid members for the year commencing April 1, 1962, (6) number of "Havana" cabana rentals available, (7) number of "Havana" cabanas actually used during the year, (8) capacity of day camp facilities for the summer for 8-year-old girls and 6-year-old
girls, and (9) number of 8-year-old girls and 6-year-old girls who attended day camp during the summer of 1962.
Plaintiff answered the first question above by stating, "This action is not based on loss of profits." Plaintiff refused to answer the remaining questions on ...