On appeal from the Superior Court of New Jersey, Law Division, Bergen County.
Michels and Gruccio. The opinion of the court was delivered by Michels, P.J.A.D.
Defendant North Star Graphics, Inc. appeals from a judgment of the Law Division entered on a jury verdict awarding plaintiff George H. Swatek, Inc. $38,586.84 in damages together with $7,041.94 in interest and dismissing its counterclaim.
A brief summary of the facts giving rise to this appeal follows. In February 1986, defendant and plaintiff entered into a contract under which plaintiff was to supply defendant with shipping containers. Plaintiff delivered the first 10,000 containers and defendant paid for them without complaint. In April
1986, defendant requested that plaintiff recut the delivered containers so defendant could ship the containers by United Parcel Service. After recutting the containers, plaintiff delivered them, along with an additional quantity, to defendant. Defendant accepted and paid for these containers.
Defendant later learned that the containers did not meet United Parcel Service's strength standards. Eventually, plaintiff developed a protective cushion that enabled the containers to meet the specifications. In mid-April 1986, plaintiff and defendant agreed that plaintiff would supply defendant with approximately 32,000 cushions. Plaintiff testified that the parties did not set a delivery date, however, defendant believed that the cushions were to be shipped by April 28, 1986. Plaintiff started shipping the cushions in mid-May 1986 and continued shipping the cushions until early June 1986. Because the shipments arrived too late for defendant to meet its obligations with its customers, defendant shipped the containers by air using other packaging materials. Defendant refused to pay for the cushions.
Plaintiff instituted this action to recover damages for monies allegedly due under the contract. Defendant counterclaimed for breach of contract, negligent performance of the contract and fraud. Following a lengthy trial, the jury returned a verdict for plaintiff and the court entered judgment accordingly. This appeal followed.
Defendant first contends that the trial court erroneously directed a verdict in favor of plaintiff and therefore, a new trial is warranted. We disagree. We are satisfied from our study of the record and the arguments presented that the trial court properly enforced the parties' stipulation and framed the jury questions in light of that stipulation.
At the commencement of the trial, the parties agreed on the following stipulation as recounted by the trial court:
THE COURT: Okay. The attorneys have asked me to read a stipulation. They have made a stipulation or agreement. They agree the facts are rather than
having you prove the fact, it is stipulated by the parties that the Plaintiffs Swatek delivered to Defendants counterclaimant Northstar Graphics, Inc. and or to Browerman Die Cutting, a warehouse hired by Northstar Graphics, Inc., certain goods under invoices totalling $38,586.84. It is also agreed that said amount has not been paid. So, those are the facts in the case the parties agree on.
At the end of the case, plaintiff moved "for a directed verdict at least for the amount requested in the complaint." The trial court did not formally grant or deny this request but rather, stated:
THE COURT: The charge has, it's already been provided. The issue as far as plaintiff's case is concerned, the charge I proposed to make to the jury is not an issue issue, the 38,000 whatever dollars, is not an issue in the case. The only issue in the case is whether there should be a set off for the breach of contract alleged in the counterclaim, or if -- or if it exceeds ...