Lo Bosco v. Resnitzky, 405.

• Decision Date: 28 July 1939
• Docket Number: No. 405.,405.
• Citation: 123 N.J.L. 3,7 A.2d 869
• Parties: LO BOSCO v. RESNITZKY.
• Court: New Jersey Supreme Court

7 A.2d 869

123 N.J.L. 3

LO BOSCO

v. RESNITZKY.

No. 405.

Supreme Court of New Jersey.

July 28, 1939.

Appeal from District Court, Second District, Hudson County.

Action by Nancy Lo Bosco, also known as Nancy Corrier, against Abraham Resnitzky trading as the Metropolitan Furniture Company, to recover damages for an alleged breach of contract for the sale of household furniture. From a judgment in favor of the plaintiff, the defendant appeals.

Judgment affirmed.

Argued May term, 1939, before CASE and HEHER, JJ.

Joseph Moritz and Saul Nemser, both of Jersey City, for appellant.

Archie Elkins, of Jersey City, for respondent.

PER CURIAM.

Plaintiff was awarded judgment for $300 in an action to recover damages for an alleged breach of a contract for the sale of household furniture, tried before the district court judge without a jury; and defendant appeals.

The gist of the action is that, by reason of defendant's failure to deliver the goods in accordance with the contract, plaintiff was compelled to purchase like goods elsewhere at a higher price.

A prior judgment for the plaintiff was reversed by this court on the ground that the trial judge erred (a) in undertaking "to ascertain tne amount of damages apparently without regard to the uncontradicted evidence of the original salesman called for the defendant that the plaintiff had told him that she bought the furniture for which she paid $989 on time payments, whereas the sale as made by the defendant was on the basis of cost plus commission and, as already stated, cash on delivery;" and (b) in overruling a question put to the salesman who made the second sale to plaintiff "as to whether the furniture so sold to plaintiff was on a C. O. D. basis or a time basis." 120 N.J.L. 495, 200 A. 1010, 1011.

The first point made is that there was error in the denial of defendant's motion "for a direction of verdict and in rendering a verdict in favor of the plaintiff in the sum of $300.00."

The second half of this specification does not embody a valid ground of appeal. It does not set forth a claimed error in point of law. Biczis v. Public Service Co-Ordinated Transport, 115 N.J. L. 407, 180 A. 553.

The motion for the direction of a verdict was based upon the contentions that the proofs conclusively established an accord and satisfaction and mutual rescission, and that there was a lack of proof of damages.

The claim of accord and satisfaction and rescission is based upon the acceptance by plaintiff of...