Monmouth Park Ass'n v. Warren

• Decision Date: 20 November 1893
• Citation: 27 A. 932,55 N.J.L. 598
• Parties: MONMOUTH PARK ASS'N v. WARREN.
• Court: New Jersey Supreme Court

27 A. 932

55 N.J.L. 598

MONMOUTH PARK ASS'N

v. WARREN.

Court of Errors and Appeals of New Jersey.

Nov. 20, 1893.

(Syllabus by the Court.)

Error to supreme court.

Action in assumpsit by William E. Warren against the Monmouth Park Association. Plaintiff had judgment, and defendant brings error. Affirmed.

The other facts fully appear in the following statement by MAGIE, J.:

"The record discloses the following facts: The action was brought in the Monmouth common pleas by William E. Warren against the Monmouth Park Association. Besides the common counts, the declaration contained a count founded on a contract between the parties, whereby Warren agreed to do certain work in grading, etc., for the association, which agreed to pay therefor a specified price, and averring performance and nonpayment Oyer of the contract being craved, the association pleaded several pleas, to which Warren replied. The association demurred to one of the replications, and the court, on motion, ordered the demurrer stricken out as irregular and defective. The order was entered on the record. Thereupon, the association filed a rejoinder to the replication which had been demurred to, and all the issues, being of fact, were tried before the court without a jury. The finding was in favor of Warren, and judgment thereon was entered. The judgment was removed to the supreme court by writ of error, and was there affirmed.

William H. Vredenburgh and William T. Hoffman, for plaintiff in error.

Henry M. Nevius, for defendant in error.

MAGIE, J., (after stating the facts.)

Plaintiff in error first contends that there was error in the order of the common pleas striking out its demurrer to the replication as irregular and defective. By section 132 of the practice act, power to strike out any pleading which is irregular or defective or is so framed as to prejudice, embarrass, or delay a fair trial of the action, is conferred on any court, and it is expressly provided that, if required by the party whose pleading has been struck out, the order striking out shall be put on the record, and error may be assigned thereon. The order in this case appears on the record, and is the subject of one of the assignments of error.

Many perplexing questions as to the scope and extent of this legislation suggest themselves, but I do not think we are called upon to resolve them now, or even to determine, in this case, whether the order attacked was erroneously made, for, if that be assumed, it is obvious that the error has occasioned no injury to plaintiff in error, and for such an error there should be no reversal. Humphreys v. Mayor of Woodstown, 48 N. J. Law, 588, 7 Atl. Rep. 301; Freeman v. Bartlett, 47 N. J. Law, 33. The substantial objection to the replication was on the ground that it was a departure from the declaration, and set up another contract than that declared on. Had the declaration contained a count founded on the contract supposed to be set up in the replication, the association could have presented its defense thereto by appropriate plea or pleas. When its demurrer was struck out, it proceeded to present its defense to the claim of the replication by a rejoinder. Such defense was so presented with the same effect as if it had been presented by plea to a declaration setting out the same claim. Issue was joined thereon, and from the case before us it clearly appears that the real question between the parties has been tried and determined. The error, if it was error, did not prevent the association from presenting its defense both by pleading and proof. If the replication was a departure, the court of common pleas might have permitted such amendment of the pleadings as was necessary to bring about the trial of the real question in controversy between the parties, and it would have been its duty to do so. As that question has, in fact, been fully tried, this court could and ought to make such amendment, if necessary. Insurance Co. v. Day, 39 N. J. Law, 89; Blackford v. Gaslight Co., 43 N. J. Law, 438; Ware v. Insurance Co., 45 N. J. Law, 177; Finegan v. Moore, 46 N. J. Law, 602. There should be no reversal on this ground.

It is next urged that the common pleas erred in admitting in evidence a paper containing an approximate statement of the amount of cubic yards of earth to be moved, and the distance of haul, thus: "From 250.000 to 300,000 cu. yds. Average haul, 782 feet Longest haul, 1,700 ft." It appears by the bills of exceptions that this paper was made out by Latourette, an employe of the association, who afterwards became, as the common pleas found, its engineer in charge of this work. The paper was furnished to Warren to make his estimate, and he bid thereon. His bid was accepted, and the contract made. By the contract, Warren bound himself to complete by a specified day certain work, the amount of which was not therein fixed, except by reference to accompanying drawing and specifications. The drawing and specifications actually annexed to the contract did not, however, fix the amount of work to be done. This paper, alone, within the limits named therein, specified the amount of work Warren was to do, by the contract it was rightly admitted in evidence by the...