J.B. Wolfe, Inc. v. Salkind, A--53

• Decision Date: 19 December 1949
• Docket Number: No. A--53,A--53
• Parties: , 13 A.L.R.2d 1214 J. B. WOLFE, Inc. v. SALKIND et al.
• Court: New Jersey Supreme Court

Page 312

3 N.J. 312

70 A.2d 72, 13 A.L.R.2d 1214

J. B. WOLFE, Inc. v. SALKIND et al.

No. A--53.

Supreme Court of New Jersey.

Argued Dec. 5, 1949.

Decided Dec. 19, 1949.

Sydney I. Turtz, West New York, argued the cause for the appellants (Theodore Cohen, West New York, attorney).

Abraham J. Slurzberg, Jersey City, argued the cause for the respondent (John J. Fallon, Hoboken, attorney).

The opinion of the court was delivered by

VANDERBILT, C.J.

The defendants appealed to the Appellate Division of the Superior Court from a judgment of the Hudson County Court rendered upon a jury verdict in favor of the plaintiff for $5,000 plus interest. We have certified the cause on our own motion for argument and decision here.

The suit was brought for the recovery of a broker's commission on an oral contract made on December 20, 1947 whereby the defendants agreed to pay the plaintiff a commission of five per cent. if it would obtain a purchaser for three designated embroidery machines and accessories for $100,000. Prior to the trial of the case the defendants moved for summary judgment on the ground that the corporate charter of the plaintiff was forfeited on January 8, 1941 by proclamation of the Governor for nonpayment of state franchise taxes before the suit was started on January 8, 1948. It was shown, however, by an answering affidavit that the plaintiff had been reinstated as a corporation on March 22, 1949, prior to the argument on the motion, and the trial court accordingly denied the motion holding that 'the acceptance by the State of the stipulated sum in lieu of taxes and penalties and the consequent reinstatement of the corporate charter validates the exercise of the corporate franchise.'

At the trial the president of the plaintiff corporation established the contract on which suit was brought, and further testified that the defendant, Leon Salkind, went with him into the defendants' plant and there wrote out a memorandum of the numbers of the machines which he then took to his customer, who thereupon expressed his desire to purchase the machines on the terms stipulated by the defendants. The defendants, however, declined to go through with the sale. The proofs of the defendants went merely to the point that they had at no time entered into any agreement with the plaintiff to obtain a purchaser for these machines.

At the conclusion of the testimony, the trial court submitted the case to the jury charging, in part, as follows: 'Was there a definite agreement between plaintiff and defendant's firm whereby the latter promised to pay plaintiff a commission of five thousand dollars upon plaintiff producing a buyer who was ready, able and willing to purchase the three embroidering machines and the named accessories for one hundred thousand dollars, $75,000 cash and the balance within two years with interest at five percent? That, ladies and gentlemen, as the proofs have turned, is the only basic issue in this case. Was there such an agreement between the parties to this case? If there was not, that is the end of the case you find for the defendant. If there was such an agreement, then you should find for the plaintiff, because there is no issue here as to whether or not a buyer was produced who was ready, able and willing. That is not contested. Plaintiff says that he produced Gutschmidt and there is no issue made of that. The only issue is, was there the brokerage contract?' After the delivery of the charge to the jury, the administration of the customary oath to the court officers attending the jury, and the retirement of the jury to the jury room, counsel for the defendants made the following objection: 'Mr. Turtz: May I most respectfully object to that portion of the charge which states that the issue as to whether a buyer was produced on the terms and conditions on which the seller wanted to sell was not in issue * * * I think that the testimony was that all the terms and conditions were unknown.'

The trial court rightly disregarded this objection for several reasons, each of which would be controlling. The defendants' answer consisted of a denial of all of the allegations in the complaint in fourteen words. There was nothing in the complaint by which the denials in the defendants' answer might raise the issue urged in counsel's objection to the trial judge's charge, nor was there any such issue stated or even hinted at in the pretrial order. The alleged issue not having been raised in the pleadings or in the pretrial order, the trial court was therefore not under any duty to charge the jury with respect to it. The defendants, moreover, failed 'either before or at the close of the evidence * * * to file written requests that the court instruct the jury on the law as set forth in the requests,' in line with the opening sentence of Rule 3:51. This provision of the rule incorporates the long established practice in this State, Levenson v. Erxleben, 135 N.J.L. 127, 50 A.2d 625 (E. & A.1946). Nor did the defendants comply with the further provisions of this rule that 'No party may urge as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection.'

The defendants' objection to the charge followed the swearing of the court officers and the retirement of the jury to the jury room and therefore came too late. The defendants contend, however, that they were not tardy in their objection because of the final provision in the rule that

'Opportunity shall be given to make the objection out of the hearing of the jury.' This provision of the rule does not mean that the jury need retire while the objection to the charge is made. Ordinarily it is made with counsel and a court stenographer at the bench while the jury is still in the box, though the trial court may, of course, direct the jury to retire if the objections to the charge and the argument thereon promise to be prolonged. But this is far different from seeking to make an objection to the charge after the court officers who are to attend the jury have been sworn and the jury has retired to consider its verdict. From then on the jury should not be disturbed or be recalled into court, except for impelling reasons to prevent a miscarriage of justice, until it is ready to render...