Johnson v. Hoffman

• Decision Date: 14 May 1951
• Docket Number: No. A--111,A--111
• Citation: 7 N.J. 123,80 A.2d 624,26 A.L.R.2d 1001
• Parties: , 26 A.L.R.2d 1001 JOHNSON v. HOFFMAN.
• Court: New Jersey Supreme Court

Page 123

7 N.J. 123

80 A.2d 624, 26 A.L.R.2d 1001

JOHNSON v. HOFFMAN.

No. A--111.

Supreme Court of New Jersey.

Argued April 9, 1951.

Decided May 14, 1951.

Ryman Herr, Flemington, argued the cause for the appellant (Herr & Fisher, Flemington, attorneys).

Jerome Alper, Newark, argued the cause for the respondent (Maurice M. Bernstein, Newark, attorney).

The opinion of the court was delivered by

OLIPHANT, J.

James P. Johnson of Bucyrus, Ohio, was a seller of livestock and by telephonic communication sold four shipments of cattle to the defendant Hoffman, of Flemington, New Jersey, during the fall of 1946. Of these shipments three were accepted and paid for by the defendant but no cash payment was made for the shipment of October 30, 1946. Two of the shipments were made prior to and one after that of October 30th. At the time when the plaintiff shipped the carload which is in issue in his complaint the defendant then owed the plaintiff for the immediately preceding shipment. Defendant, after receipt of the shipment of October 30th paid for the prior shipment and also one made later on November 4th.

On February 16, 1949, Johnson brought suit in the Superior Court, Law Division, Somerset County, in three counts: book account, express contract and Quantum valebat as to the October 30th shipment. Defendant's answer amounted to a general denial together with a separate defense setting up that whatever money may have been owed to the plaintiff had been paid by credits allowable on the other shipments. The answer contained a counterclaim in five counts in which the defendant alleged certain representations and warranties had been made by Johnson respecting all of the shipments, i.e., that the cattle were marketable, in good condition and fit for resale, and asserted an account stated indicating a balance due the defendant. The last count contained this significant language 'When each of the aforementioned loads of cattle arrived the said defendant contacted said plaintiff, complained of his failure to meet the required specifications and was instructed by said plaintiff to accept said cattle and livestock, to sell same and that he would credit on said book account the loss which he sustained by reason of the fact that said cattle did not meet the required specifications.'

Plaintiff's reply consisted of admissions and denials and these separate defenses to the counterclaim: (1) that the sales were made free of any warranties; (2) that the plaintiff had waived any right to plead breach of warranty because of his actions with respect to the shipments subsequent to the receipt thereof and (3) a denial of any agreements whereby plaintiff was to make any allowances or give any credits to the defendant against any of the shipments.

On October 29, 1949, Johnson died and his widow, the executrix of his estate, was substituted as party plaintiff.

A trial of the issues was had on November 6, 1950, whereat the plaintiff's bookkeeper testified that from the decedent's books there was due from the appellant on the sale of 64 calves, the sum of $3,301.65. The invoice was marked in evidence and contained the following provisions as to warranty:

'3. Seller does not warrant said animals as free from disease or assume any responsibility whatever for death or loss of said animals subsequent to delivery.

'4. It is expressly agreed that no representations or warranties other than those herein contained have been made by the Seller.'

The plaintiff then rested. The defendant in attempting to prove his case on answer and counterclaim attempted to prove certain conversations he had with the plaintiff's decedent subsequent to the delivery of the cattle at the railroad siding in Flemington. The trial court ruled out such conversations as being in violation of R.S. 2:97--2, N.J.S.A., which prohibits testimony as to transactions with the decedent unless the representative of the decedent first offers himself as a witness on his own behalf and testifies to any transaction with or statement by his testator or intestate.

On completion of the appellant's case respondent moved for a judgment and for a dismissal of defendant's counterclaim. Both motions were granted and judgment was entered accordingly. The defendant appealed to the Appellate Division and we certified the cause here on our own motion.

Appellant first urges that the trial court erred in prohibiting the testimony of the defendant concerning matters which the decedent could not contradict of his own knowledge if living. His contention is that he was entitled on his defense and counterclaim to show the defective and non-conforming condition of the cattle shipped by the respondent's testator.

Apparently at the trial respondent elected to proceed upon the count in the complaint based upon a book account and for that purpose proved the book account of the decedent with the appellant together with the invoice. Having done that she had established a prima facie case. Books of account properly admitted into evidence are legitimate prima facie evidence to show the sale and delivery of the merchandise in question in the usual course of business. Oberg v. Breen, 50 N.J.L. 145, 12 A. 203 (E. & A.1887); Bayonne v. Standard Oil Co., 81 Id. 717, 78 A. 146 (E. & A.1910); Benoliel v. Homack, 87 Id. 375, 94 A. 605 (Sup.Ct.1915).

A representative of a decedent may offer books of account of his decedent to prove a cause of action and an offering of such evidence is not considered such a 'testifying' by the representative as amounts to a waiver under the statute so as to permit the surviving opponent to take the stand against him. The question is not without some difficulty but the prevailing weight of authority establishes such a proposition. 5 Wigmore on Evidence, 3rd ed., sections 1554, 1559, 578, 1519; 70 Cor.Jur., sec. 456, p. 343; 58 Am.Jur., p. 166; 3 Jones on Civil Evidence, 4th ed., sec. 791, p. 1452. Contrariwise, the surviving party may offer his books of account as against a deceased opponent. See also 6 A.L.R., 756. The underlying reason is that such was the practice at common law when the rule was that no party to an action could be a witness in the cause yet books of account were offered on both sides out of necessity supported by a suppletory oath. 3 Blackstone, p. 370. So whenever an administrator testifies in this way he exercises a common law right and consequently makes no election under the statute. Stevens v. Moulton,68 N.H. 254, 38 A. 732 (1895). The history of R.S. 2:97--2, N.J.S.A., and its introduction into our statute law is set forth in Berkowitz v. Pierce,129 N.J.L. 299 at page 300, 29 A.2d 552 (Sup.Ct. 1943).

With these principles in mind we address ourselves to the action of the trial court in dismissing the counterclaim. Admittedly no express warranties were made as to any of these sales except as set out above. Stripped down to fundamentals the defendant's position as set out in his pleadings, as to the three shipments other than the one involved in the complaint here was: I ordered several carloads of cattle from James P. Johnson; on arrival I inspected them and found they were not in a merchantable condition or as ordered; nevertheless I accepted them and paid for them. While Johnson undoubtedly knew the purpose for which the defendant bought the calves and there was an implied warranty that they would be reasonably fit for such purpose and merchantable, R.S. 46:30--21(1)(2), N.J.S.A., Par. 3 of that section provides that if the buyer of the goods has examined them there is no implied warranty regarding defects which such examination would reveal.

The statute likewise sets forth and defines the conditions under which goods are accepted by the buyer or the contract rescinded in situations as are here presented. The following provisions are applicable:

'46:30--54. Acceptance by buyer

'The buyer is deemed to have accepted the goods when he intimates to the seller that he has accepted them, or when the goods have been delivered to him, and he does any act in relation to them which is inconsistent with the ownership of the seller, or when, after the lapse of a reasonable time, he retains the goods without intimating to the seller that he has rejected them.'

'46:30--55. Effect of acceptance

'In the absence of express or implied agreement of the parties, acceptance of the goods by the buyer shall not discharge the seller from liability in damages or other legal remedy for breach of any promise or warranty in the contract to sell or the sale. But if, after acceptance of the goods, the buyer fails...