Fielder v. Friedman

• Decision Date: 25 April 1940
• Docket Number: No. 34.,34.
• Citation: 12 A.2d 897,124 N.J.L. 514
• Parties: FIELDER v. FRIEDMAN et al.
• Court: New Jersey Supreme Court

12 A.2d 897

124 N.J.L. 514

FIELDER

v. FRIEDMAN et al.

No. 34.

Court of Errors and Appeals of New Jersey.

April 25, 1940.

Appeal from Supreme Court.

Action for breach of contract by Albert Fielder against Benjamin Friedman and another, individually and trading as the Chateau or the Chateau Tavern. From a judgment for the defendants, the plaintiff appeals.

Affirmed.

Benjamin M. Ratner, of Newark, for plaintiff-appellant.

James L. McKenna, of Newark, and A. & H. Gurevitz, of Morristown, for defendant-respondent Benjamin Friedman.

Vincent P. Keuper, of Asbury Park, for defendant-respondent, Mabel M. Kellner.

HAGUE, Judge.

This is an appeal from a judgment, entered on the verdict of a jury, in favor of defendants. The plaintiff, a musician, sued defendants for breach of contract, alleging in his complaint an agreement to furnish an orchestra at defendants' place of business, a night club in Neptune Township, Monmouth County, N. J., commencing May 29, 1936, and terminating September 7, 1936, for an agreed price of $462 a week; that the defendants paid only $350 a week during June and $370 during July and August, and at the termination of the contract, on September 7, were indebted to the plaintiff in the sum of $1,430, together with accrued interest, making a total of $1,673.10. The defense was full payment of the contract price.

The jury returned a verdict of no cause of action in favor of the defendants and the plaintiff appeals.

Appellant's grounds of appeal are grouped into several main headings. In the first group plaintiff contends that it was error to allow cross examination of the plaintiff with this question: "Did you ever make a complaint to the Labor Board?" The extent of the direct and cross examination is a matter for the reasonable discretion of the trial judge and its exercise will not be interfered with unless there has been an abuse thereof. Stein v. Goodenough, 73 N.J.L. 812, 64 A. 961; Donovan v. Limouze, 108 N.J.L. 494, 158 A. 423. The question, we think, was properly directed to the witness's credibility.

The next two objections upon which exceptions were taken, as well as several others written down as erroneous, will not be considered because no grounds were stated for the objections in the court below although exceptions were entered.

The next question said to be error, as follows: "Did you go back to the Chateau in 1937 and play again?" was allowed over an objection that it was immaterial and not in issue. The contract between the parties was made in 1936. It was breached then, if at all, and the question asking whether plaintiff returned to play the following year was addressed to his credibility and its admissibility is discretionary with the court.

The next question to consider was addressed to Leon Burnson, sergeant-at-arms of a District Court in Monmouth County, who at the time in question was trying to have satisfied an execution against the present appellant, and the question objected to was: "What (questions) did you (Burnson) ask him (the plaintiff)?" This question was not improper. The Court, in permitting the question, probably considered that it would disclose pertinent information. In this case it did disclose an admission against interest since the testimony is that Fielder replied that he had no money and that he was not owed any by the defendants in this case. This conversation took place in August, 1936. This was no error.

In the second group, plaintiff contends that the trial court improperly overruled the following questions: "Q. How much was noted in that receipt?" The receipt had not been produced. Objection was made to this question on the ground that the receipt not being in evidence parol evidence could not be introduced as to what the receipt contained. The ruling was correct. The receipt itself was the best evidence. Blitzer v. Michaels, 146 A. 589, 7 N.J.Misc. 561; Corbo v. East Orange & A. Land Co., 86 N.J.L. 563, 92 A. 345; Durbrow v. Hackcnsack Meadows Co., 77 N.J.L. 89, 71 A. 59. Secondly, no foundation was laid for this type...