J. D. Loiseaux Lumber Co. v. O'Reilly
| Citation | 141 A. 763 |
| Decision Date | 14 May 1928 |
| Docket Number | No. 11.,11. |
| Parties | J. D. LOISEAUX LUMBER CO. v. O'REILLY. |
| Court | New Jersey Supreme Court |
(Syllabus by the Court.)
Appeal from Circuit Court, Somerset County.
Action by the J. D. Loiseaux Lumber Com. pany against Luke O'Reilly. From a judgment for plaintiff, defendant appeals. Affirmed.
Winfield S. Angleman, of Plainfield, for appellant.
Edward P. Johnson, of Somerville, for respondent.
WALKER, Chancellor. The plaintiff respondent sued the defendant in the Somerset county circuit court, upon a book account, for the price of goods sold and delivered to the defendant. The case was tried before Lawrence, C. C. J., and a jury, and the plaintiff had judgment. Defendant appeals, filing only one ground of appeal, as follows:
"The court charged the jury: 'Gentlemen of the jury, first, as you have heard, the plaintiff company is seeking to recover of the defendant a sum of money representing the value of materials which it claims to have sold and delivered to the defendant, on the account which has been produced before you, and, I may say, proven, as to the items and amounts charged therefor.'"
And this is alleged to be reversible error.
This is not a case like that of Collins v. Central R. R. Co. of N. J., 90 N. J. Law, 593, 101 A. 287, where the court made an erroneous charge on a certain subject, and this court held that an erroneous instruction is not cured by a subsequent correct one, unless the illegal one is withdrawn.
It will be observed that here the judge only said that the items of the account, he might say, were proved. Even this, read by itself, does not amount to a binding instruction that the account was proved—only that it appeared to be—and it may well be that this alone was not reversible error. But that question is unnecessary to decide, as another principle is controlling.
In Redhing v. Central R. R. Co., 68 N. J. Law, 641, 54 A. 431, this court held that although sentences in a charge may, if read apart from their connection, need some qualification to render them accurate, yet, if the qualification be given in the context so that the jury cannot reasonably be thought to have been misled by the charge taken in its entirety, there is no error. See, also, Brown v. Spence, 79 N. J. Law, 452, 75 A. 154; State v. Timmerari, 96 N. J. Law, 442, 445, 115 A. 394.
In the instant case the judge correctly charged the jury that the plaintiff carried the burden of satisfying them that the materials were sold and...
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Marzotto v. Gay Garment Co.
...its entirety, there is no error.' Merklinger v. Lambert, 76 N.J.L. 806, 72 A. 119, 121 (E. & A. 1908); J. D. Loizeaux Lumber Co. v. O'Reilly, 104 N.J.L. 510, 141 A. 763 (E. & A. 1928). Then again, somewhat differently phrased--'If in his charge to the jury the judge uses a word or a phrase ......
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Davidson v. Fornicola
...76 N.J.L. 806, 72 A. 119 (E. & A.1908); State v. Timmerari, 96 N.J.L. 442, 115 A. 394 (E. & A.1921); J. D. Loizeaux Lumber Co. v. O'Reilly, 104 N.J.L. 510, 141 A. 763 (E. & A.1928); Larsen v. Raritan Valley Farms, Inc., 109 N.J.L. 363, 162 A. 737 (E. & A.1932); Johnson v. Central Railroad C......
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State v. Stephan
...otherwise not guilty. The jury could not have misunderstood this. State v. Gibcrsou, 99 N.J.Law 85, 122 A. 724; J. D. Loizeaux Lumber Co. v. O'Reilly, 104 N.J.Law 510, 141 A. 763; State v. Timmerari, 96 N.J.Law 442, 115 A. We find no harmful error. The judgment of conviction is affirmed. Fo......
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State v. Wines, A--664
...weight of the believable evidence were not only illogically discordant, but both were erroneous. Cf. J. D. Loizeaux Lumber Co. v. O'Reilly, 104 N.J.L. 510, 141 A. 763 (E. & A.1928). We are persuaded that the quoted passages of the court's charge were in any aspect plainly erroneous and such......