Bozza v. Leonardis

• Decision Date: 20 November 1925
• Docket Number: No. 35.,35.
• Citation: 131 A. 87
• Parties: BOZZA v. LEONARDIS et al.
• Court: New Jersey Supreme Court

131 A. 87

BOZZA

v. LEONARDIS et al.

No. 35.

Supreme Court of New Jersey.

Nov. 20, 1925.

Appeal from Circuit Court, Essex County.

Action by Daniel Bozza against Peter Leonardis and others, individually and trading as Peter Leonardis & Sons. Judgment for plaintiff, and defendants appeal. Affirmed on condition of remittitur.

Argued January term, 1925, before GUMMERE, C. J., and PARKER and KATZENBACH, JJ.

Edward Schoen, of Newark, for appellants.

Fast & Fast, of Newark (Frank B. Bozza, of Newark, of counsel), for appellee.

PER CURIAM. This is an appeal from a judgment of the Essex county circuit court recovered by the plaintiff. On October 9, 1920, the plaintiff and the defendants entered into an agreement by which the plaintiff bought a carload of Concord grapes, at $150 per ton, to be delivered at Newark, N. J. The agreement provided that the plaintiff was to pay for the grapes according to the railroad weight of the contents in the car. The car arrived and the railroad weight was said to be 32,000 pounds. From this weight there was to be deducted the weight of the trays and baskets in which the grapes were packed. This amounted to 2,572 pounds, leaving the net weight 29,428 pounds. The plaintiff, upon the arrival of the grapes, weighed them. He claimed he found a shortage of 9,071 pounds. Upon the discovery of this shortage, the plaintiff contends that the defendants agreed to make good the deficiency in weight by delivering other grapes or paying cash. This suit was instituted to recover the amount of the overcharge. This case can best be considered by a reference to the grounds of appeal.

The first ground is that the verdict of the jury was against the weight of the evidence. This ground cannot be considered on an appeal. We have nothing to do with the weight of the evidence.

The second ground is that illegal testimony was admitted by the trial judge when he admitted memoranda made by the plaintiff showing the weight of the grapes as weighed by the plaintiff. No exception appears in the record of the case to the court's admission of these memoranda. This was pointed out at the argument of the case. By a stipulation now produced, it appears that an exception was taken to the court's admission of the memoranda. The consideration of the admissibility of the memoranda must, however, be confined to the scope of the objection. The objection made was lengthy, but appears to be that the memoranda were immaterial. It is now argued that the memoranda were not of themselves evidential and could only be used to refresh the plaintiff's memory. This contention will not be considered, as it was not made a ground of objection. If it be true that, before the payment was made, the defendants agreed to refund any excess due, shown by the reweighing, either in cash or grapes, then the memoranda were not immaterial to the issue. We have therefore reached the conclusion that there was no error in, the admission of the memoranda in evidence which we can consider.

The third...