Schaefer v. Brunswick Laundry, Inc.

• Decision Date: 31 January 1936
• Docket Number: No. 119.,119.
• Citation: 183 A. 175
• Parties: SCHAEFER v. BRUNSWICK LAUNDRY, Inc.
• Court: New Jersey Supreme Court

183 A. 175

SCHAEFER

v. BRUNSWICK LAUNDRY, Inc.

No. 119.

Court of Errors and Appeals of New Jersey.

Jan. 31, 1936.

Appeal from Supreme Court.

Action by Floyd G. Schaefer, trading as F. G. Schaefer Iron Works, against Brunswick Laundry, Incorporated, and others, wherein a nonsuit was entered as to all but named defendant. From a judgment for plaintiff, named defendant appeals.

Reversed.

Paul C. Supinski and John Francis Gough, both of Jersey City, for appellant.

Hopkins, Vorburger & Dickson, of Hoboken, for respondent.

WELLS, Judge.

This is an appeal from a judgment entered on the verdict of a jury in the New Jersey Supreme Court, Bergen Circuit, in favor of the plaintiff, Schaefer, and against the defendant, Brunswick Laundry, Inc., hereinafter called the laundry company, in the amount of $3,349.64.

On August 27, 1929, the laundry company entered into a written contract with Nicholas D'Elia, trading as the D'Elia Contracting Company, hereinafter called the general contractor, for the construction of a power plant. This contract provided inter alia, that if the general contractor defaulted, the laundry company would have a right to complete the contract and hold the general contractor liable for any loss occurring by reason of such default. It was further provided that the work be completed within sixteen weeks, with a stipulation of $50 liquidated damages for each day elapsing between the appointed and actual time of completion.

On August 28, 1929, the general contractor entered into a written subcontract with the plaintiff, Schaefer, for the erection of all structural steel work, as required for the power plant. The subcontract provided that if Schaefer defaulted, the general contractor would have a right to complete the structural steel work, and hold Schaefer liable for any loss occurring by reason of the default. If for any reason an extension of time for performance was desired by Schaefer, the same would be determined only upon request made in accordance with the terms of the subcontract. Final payment was to be made to Schaefer by the general contractor sixty days after satisfactory completion of the general contract.

For the purpose of performing his work, Schaefer rented certain equipment for use until the job was completed. The work continued until January 10, 1930, when a strike occurred among the employees of Schaefer, and work was discontinued for a period of approximately nine weeks. During this time Schaefer was obliged to pay rent for the equipment and other sums to insure its safekeeping.

A meeting was called to adjust differences and was attended by Schaefer, the general contractor, Henry Sieminski (general manager of the laundry company), and certain representatives of the union of the strikers. As a result of lengthy discussion, the strike was called off, but Schaefer refused to continue performance unless he was paid for the rentals and charges accruing during the time of the strike. There was testimony (which was controverted) that Sieminski then orally promised to pay this amount, and instructed Schaefer to submit his bill to the architect to be checked.

The work was completed under the written contracts, and upon refusal of the laundry company to pay the rentals and charges, as above, this action was started by Schaefer against the laundry company and D'Elia, or in the alternative, Sieminski and D'Elia. A nonsuit as to D'Elia was entered before trial, and a nonsuit as to Sieminski was entered during the course of the trial, it being stipulated that Sieminski was acting as agent for the laundry company.

The complaint sought recovery, not only on the oral promise or contract of Sieminski, but also on the theory that the laundry company was responsible for the strike. This latter ground was discarded at the trial, and no attempt made to allocate the blame for the strike. The jury returned a verdict for Schaefer on the oral promise, and from the judgment entered thereon this appeal is taken.

The laundry company raises generally four grounds of appeal, attacking the admission of certain evidence and the refusal of motions for nonsuit and directed verdict.

It is first contended that the trial court erred in admitting in evidence the subcontract between D'Elia and Schaefer, to which the laundry company was not a party. This contract was admissible, and appears to have been offered, to show the relationship of the parties. Wallace v. Kennelly, 47 N.J.Law, 242. Since no attempt was made to hold the laundry company responsible for the strike, the admission of the subcontract in evidence was not reversible error from this standpoint.

It is next contended that the oral promise was that of Sieminski, and not the laundry company. This, a mere question of agency, was admitted at the trial, and a nonsuit entered as to Sieminski upon the stipulation that he acted as representative of the laundry company.

The third ground of appeal is based on the theory that the oral contract was in truth a promise to pay the debt of another, and therefore no action could be based nor testimony introduced thereon because of the statute of frauds (2 Comp. St. 1910, p. 2612, § 5). At the time of this oral promise, however, the amount involved was a loss that had accrued to Schaefer outside of his written subcontract, and had not attained the character of a debt owed by any person. The oral contract of Sieminski was the first, and of necessity an original promise to pay the loss. The inapplicability of the statute of frauds to such a situation is apparent. Hetficld v. Dow, 27 N.J.Law, 440, Fitzgerald Spear Co. v. Kelly, 81 N.J.Law 6, 83 A. 491, affirmed 83 N.J.Law, 626, 85 A. 1134.

The fourth general ground of appeal, raised at the trial as a reason for nonsuit, is that there was no consideration for the oral promise or contract of the laundry company.

It should be first noted as a distinguishing feature of this case that the bill submitted by Schaefer involved in the litigated contract, arose not from performance, but during a period of...