Gelman, J.J. & D.r. Ct. (temporarily assigned).
[117 NJSuper Page 355] This action for breach of contract was tried before the court and jury, resulting in a verdict in favor of the plaintiff in the sum of $3,264. At the conclusion of plaintiff's case defendant moved for a dismissal of the complaint on the ground that the contract, not being in writing, was not enforceable
under section 2-201 of the Uniform Commercial Code, N.J.S.A. 12A:2-201.*fn* Decision on defendant's motion was reserved and the factual issues were submitted to the jury for its determination. Pursuant to R. 4:40-2(a) and for the reasons hereinafter set forth, the court herewith grants defendant's motion to dismiss and directs the entry of judgment thereon.
Accepting as true the testimony of plaintiff's witnesses and all inferences which could reasonably be drawn therefrom, the jury could have found the following facts at the conclusion of plaintiff's case: Plaintiff is engaged in the purchase and sale of paper waste and scrap. It purchases paper waste from a variety of customers, including charitable organizations as well as industrial and commercial accounts. It maintains trucks which it employs to collect the waste and, in the case of industrial and commercial accounts, its trucks make pickups at regular intervals or when called by the account. The waste thus collected is sorted and re-baled at plaintiff's plant and resold to others who process the paper for re-use. The business in which it is engaged is highly competitive and it is not customary in the trade to have written contracts with the accounts from whom paper waste is purchased. In the normal course of business both the seller of the waste and plaintiff are free to terminate their relationship at any time. The price which plaintiff pays to its accounts for waste is determined from time to time from quotations set forth in a trade journal, and purchase invoices are sent to the accounts at the end of each month showing the amount collected, the price and the balance due to the account.
Defendant is engaged in the business of processing data information cards. A substantial quantity of paper scrap is generated as a result of the processing work. In 1967 defendant moved from New York to a new plant in Carlstadt.
Plaintiff's officers learned that defendant had relocated in New Jersey, and Anthony D'Elia called upon defendant's plant manager, Jack Osmet, to solicit the purchase of defendant's waste. An agreement was reached between Osmet and D'Elia whereby defendant did sell its waste to plaintiff for a few months during 1968. The agreement was oral and was terminable at any time by either party. The arrangement was, in fact, terminated by defendant, who received a more favorable price from one of plaintiff's competitors.
In February or early March 1969 Osmet contacted D'Elia concerning problems defendant was having in the disposition of its paper waste, and there was a preliminary discussion between them concerning the installation of a paper baling press at defendant's plant. D'Elia reported this conversation to his brother, Emil D'Elia, who was plaintiff's president. In early March a meeting was held at defendant's plant, attended by Osmet, Emil D'Elia and Joseph D'Elia, the latter being an officer of plaintiff but not actively associated with the business. According to Emil and Joseph D'Elia, an oral agreement was reached at this meeting, the terms of which were as follows: plaintiff would purchase and install a paper baling press at defendant's plant, and defendant would pay for the baler at the rate of $100 a month in the form of a credit to plaintiff against the sales price of the waste which defendant would sell to plaintiff each month. In consideration of plaintiff's agreement to install the baler and to accept payment in monthly installments, defendant agreed to sell all of its paper waste to plaintiff for a period of two years from the time the baler was installed. The selling price for the waste was to be determined on the basis of trade journal quotations in effect at the end of each month.
On March 12, 1969 plaintiff resumed collection of defendant's paper waste and submitted purchase invoices for the quantity collected through May 19, 1969. On or about May 19, 1969 plaintiff purchased a baler which was installed at defendant's plant, the total purchase price and installation
charge being $1,493.50. Plaintiff continued to collect the waste thereafter and submitted purchase invoices each month. Each invoice, which covered several collections, set forth the quantities of different types of waste collected, the purchase price for each category and the total amount due from plaintiff to defendant. From this total $100 was deducted for the baling press, and the current balance due for the baling press appeared on each of the subsequent invoices, beginning with the invoice of June 9, 1969. Plaintiff continued the collection and payment for the waste in this manner through the end of December 1969, after which it received no communications from defendant to pick up waste.
In the early part of January Anthony D'Elia called defendant's plant and was told by Robert Hull, who had replaced Osmet as defendant's plant manager, that plaintiff's "services" were no longer required. As a result of this conversation Emil and Anthony D'Elia went to defendant's plant and met with Hull. Hull iterated that defendant would no longer sell its waste to plaintiff, that it was now selling to another dealer. Emil D'Elia pointed out that plaintiff had installed the baling press on defendant's premises, and Hull told him that if that were the case, he could remove it. The following day Emil D'Elia went to defendant's plant to remove the baling press but he was met by Hull, who advised him that defendant had an interest in the baling press since it had paid a part of the purchase price in the manner described above. Hull said that defendant would pay the balance due on the baling press, and Emil D'Elia left. However, defendant subsequently failed to pay the sum of $593.50, being the balance due on the baling press as disclosed by the last purchase invoice submitted by plaintiff to defendant. Plaintiff thereupon instituted this action to recover damages for defendant's breach of the oral agreement to sell its paper waste to plaintiff for a period of two years from May 19, 1969.
In his opening to the jury defendant's counsel admitted its liability to plaintiff for the sum of ...