Alpaugh v. Wood

• Decision Date: 17 November 1891
• Citation: 23 A. 261,53 N.J.L. 638
• Parties: ALPAUGH et al. v. WOOD et al.
• Court: New Jersey Supreme Court

23 A. 261

53 N.J.L. 638

ALPAUGH et al.

v. WOOD et al.

Court of Errors and Appeals of New Jersey.

Nov. 17, 1891.

(Syllabus by the Court.)

Error to supreme court.

Suit by Spencer M. Alpaugh and others against William Wood and others on a contract. Judgment of nonsuit for defendants. Plaintiffs bring error. Reversed. For former reports, see 11 Atl. Rep. 469, and 16 Atl. Rep. 676.

The other facts fully appear in the following statement by Dixon, J.:

The plaintiffs, Alpaugh & Magowan, brought suit in the supreme court against the defendants, Wood 'and Barlow, upon the following contract: "Court of Errors and Appeals. Exhibit P 18. January 23, 1890. Agreement made this seventh day of May, A. D. eighteen hundred and eighty-three, between Spencer M. Alpaugh and Frank A. Magowan, of the city of Trenton, New Jersey, party of the first part, and William Wood, of the township of Lawrence, and James Barlow, of the city of Trenton, in the county of Mercer and state of New Jersey, parties of the second part: Witnesseth, that whereas the said party of the first part own and operate a pottery manufactory in the city of Trenton, heretofore known as the pottery of Coxon and Company; and whereas they have agreed to employ and have employed the said parties of the second part, respectively, to superintend and manage the manufacturing part of the business of said pottery, including the decorating department, taking entire charge of the works, employment of hands, and selection of materials; therefore it is agreed between the said parties as follows: That said Alpaugh and Magowan have agreed, and by these presents do agree, to employ, and do hereby employ, the said William Wood and said James Barlow to take the entire charge of the manufacturing department of their said pottery, including the decorating department, for the term of three years and two months from the date of this agreement. And the said parties of the second part do hereby agree to enter the employment of the said party of the first part as aforesaid, and to take the entire charge of the manufacturing department of said pottery, and to give their whole time, labor, and skill towards the proper management of said business during the term aforesaid. And the said party of the first part do agree that the said parties of the second part shall receive for their said services during the said period the salary of three thousand dollars a year each, payable in weekly payments, and do further agree that said Wood and Barlow shall also have and be entitled to ten per cent. of the net profits of said business during said period. And said party of the first part do guaranty that said profits shall bring in to said party of the second part a sum of at least two thousand dollars a year to each of them; and said salary and profits to begin on the twenty-first day of May, eighteen hundred and eighty-three. It is further understood that James Barlow gives * his entire knowledge and services in modeling to Alpaugh & Magowan, and renders no service or knowledge to any one * else. * In witness whereof the said parties have hereunto set their hands and seals the day and year first above written. Spencer M. Alpaugh. [L. S.] P. A. Magowan. [L. S.] William Wood. [L. S.] James Barlow, [L. S.] Signed, sealed, and delivered in the presence of (clauses between marks thus, *, inserted before signing) Geo. R. Cook. Trenton, N. J., May 7, '83." The gravamen of the complaint is that the defendants did not exercise proper care and skill in the performance of their obligations, and that in consequence thereof losses were sustained by the plaintiffs. At the trial of the cause in the Mercer circuit, the plaintiffs produced evidence tending to show the following facts: That, up to the date of the foregoing contract there had been manufactured at the plaintiffs' pottery only the common grades of ware, known as the "White Granite" and the "C. C," which were undecorated; that, very soon after the defendants took charge of the pottery, they commenced the manufacture of a higher grade of ware, which was designated "Imperial China;" that at first this ware was made in plain white, but within a few months they began to decorate it with colors printed and laid on outside of the glaze; that in the year 1884 they commenced to decorate with color placed under the glaze, directly upon the biscuit; that these several kinds of decorated ware, after being a short time in use, became badly crazed, chipped easily, and absorbed moisture and grease, because the body of the ware was soft and porous, the glazing was too light or too rich, and the goods had not been properly fired; that by reason of these defects a large part of the product of the pottery was unmerchantable; that the manufacture of these sorts of crockery was entered upon at the suggestion of the defendants, or one of them, and was conducted under their management; that all of these classes of goods were designed for common use in private families and in hotels; and that the kind which was decorated upon the biscuit had been successfully manufactured in a pottery in England under the management of one of the defendants, while the other sorts were, both before and during the running of this contract, properly produced from other potteries in Trenton, and elsewhere in the United States. At the close of the plaintiffs' case a nonsuit was ordered by the trial judge on the ground that the contract related only to those kinds of ware, white granite and C. C, which had been manufactured at the pottery prior to the making of the agreement. Upon exception to this ruling a writ of error was sued out from this court.

G. D. W. Vroom and B. Gummere, for plaintiffs in error.

C. H. Beasley and James Aitken, for defendants in error.

DIXON, J., (after...