Benoliel v. Homac

• Decision Date: 14 June 1915
• Citation: 94 A. 605,87 N.J.L. 375
• Parties: BENOLIEL v. HOMAC et al.
• Court: New Jersey Supreme Court

94 A. 605

87 N.J.L. 375

BENOLIEL

v. HOMAC et al.

Supreme Court of New Jersey.

June 14, 1915.

(Syllabus by the Court.)

Appeal from District Court of Elizabeth.

Action by Abraham D. Benoliel, trading, etc., as French Wine House, against Martin Homac and another, partners. From judgment for plaintiff, defendants appeal. Affirmed.

Argued February term, 1915, before TRENCHARD, BERGEN, and BLACK, JJ.

Richard F. Henry, of Elizabeth, for appellants. Charles J. Stamler, of Rahway, for appellee.

TRENCHARD, J. This was a suit upon a book account for merchandise sold and delivered, and this appeal brings up for review the judgment rendered by the judge, sitting without a jury, in favor of the plaintiff and against the defendants. The defendant Czuzas defended upon the ground, among others, that he was not a member of the defendant firm, and he alone appeals.

We are of the opinion that the judgment must be affirmed.

There is no merit in the contention that the judge had no power to permit the plaintiff to amend the record during the trial, by striking out the name of the French Wine House, a corporation, as plaintiff, wherever it occurs in the process and pleadings, and inserting the name of Abraham L. Benoliel, trading, etc., as French Wine House, as plaintiff. The power of amendment bestowed upon the district court by the District Court Act (2 Comp. St. 1910, p. 2002, par. 161) is amply sufficient to permit an amendment of this character. Prudential Ins. Co. v. Taylor, 59 N. J. Law, 352, 35 Atl. 798; Farrier v. Schroeder, 40 N. J. Law, 601.

It is next claimed that there should be a reversal because of the denial of the motion for nonsuit We think not. It is first said that the motion should have been granted because the plaintiff's claim was not proved. Not so. The books of account of the plaintiff were properly admitted in evidence, and these were legitimate prima facie evidence to show the sale and delivery of the merchandise in question in the usual course of business. Bayonne v. Standard Oil Co., 81 N. J. Law, 717, 78 Atl. 146.

It is next contended that the nonsuit should have been granted as to the defendant Czuzas because of failure of proof as to his membership in the defendant firm. But a complete answer to this contention is that a refusal to nonsuit for failure of proofs will not justify a reversal if the defect was supplied by evidence thereafter taken in the progress of the cause. Esler v. Camden & Suburban Ry. Co., 71 N. J. Law, 180, 58 Atl. 113. As we shall hereafter point out, if there was such want of proof at the time the motion for nonsuit was denied, it was supplied thereafter in the course of the trial.

It is next objected that the trial judge admitted parol evidence to prove...