Swenson v. Nairn

• Citation: 30 A.2d 897
• Parties: SWENSON v. NAIRN et al.
• Decision Date: 26 March 1943
• Court: United States State Supreme Court (New Jersey)

30 A.2d 897

SWENSON

v.NAIRN et al.

Supreme Court of New Jersey.

March 26, 1943.

Action by Johan Swenson against John M. Nairn, doing business as Superior Electric Company, Westinghouse Electric and Manufacturing Company and Westinghouse Electric Supply Company. On motion of Westinghouse Electric and Manufacturing Company and Westinghouse Electric Supply Company to strike amended complaint.

Motion denied.

McDermott, Enright & Carpenter, of Jersey City, for plaintiff.

Milton, McNulty & Augelli, of Jersey City, for defendants Westinghouse Electric & Manufacturing Co. and another.

BROWN, Supreme Court Commissioner.

The defendants Westinghouse companies move, generally, to strike the amended complaint filed in the above entitled cause and specifically as they are respectively named in the seven counts therein, on the grounds: that sufficient facts are not set forth to constitute a cause of action; for uncertainty and statements of irrelevant matter that are designed to ‘embarrass the issue’. The general objection of misjoinder of parties has been abandoned. The motion addressed to the first count is denied as that count is directed against the defendant Nairn only and the cause of action arises out of a contract with him and no motion is made to strike on behalf of that defendant. It follows as this part of the amended complaint is not stricken the motions made generally to striek should be denied and it is so determined. Introcasso v. Jasper, 159 A. 163, 10 N.J.Misc. 494; Malone v. Brotherhood of L. F. & E., 94 N.J.L. 347, 110 A. 696; Van Schoick v. Van Schoick, 76 N.J.L. 242, 69 A. 1080; McCarter v. United N. J. R. Co., 76 N.J.Eq. 323, 74 A. 315; Eibel v. Von Fell, 63 N.J.L. 3, 42 A. 754; Van Horn v. Van Horn, 52 N.J.L. 284, 20 A. 485, 10 L.R.A. 184. To properly consider the remaining objections made specially to the remaining six counts, reference to the pleadings is necessary. In all the counts of the amended complaint it is alleged that the plaintiff was engaged in the business of building and repairing vessels and in connection therewith owned and operated a dry dock known as No. 2 in Jersey City. In the first count it is stated the defendant Nairn was engaged in the business ‘of manufacturing, vending, installing and repairing various kinds of electrical machinery and appliances, including electric motors'. In October, 1937, the plaintiff entered into a written contract with Nairn ‘who agreed to install and did install’ in place of the steam power then in use in the dry dock ‘electric and mechanical equipment, including a motor, such equipment and motor to be of suitable size, type and fitness to operate the said dry dock No. 2 in a satisfactory manner’ under the terms of the written agreement which is pleaded as part of the amended complaint. It is further charged that Nairn knew, or should have known, if the motor failed during the raising of the dock it would sink to the river bed and be seriously damaged. In the written agreement Nairn is described as a ‘general agency’ for the Westinghouse Electric and Manufacturing Company. He agreed with the plaintiff, owner, on or before November 19, 1937, to ‘complete and finish the electrical and mechanical work to be done on and in Dry Docks Nos. 1 and 2’ of plaintiff Swenson, according to specifications and estimate stated to be annexed to the agreement and made part thereof. The agreement also provides that the Westinghouse Electrict and Manufacturing Company is to furnish the drawings to be followed as well as furnish all the materials of the kind and quality called for in the specifications. The agreement provides the first payment to be made ‘on completion of all work involved and on satisfactory operation of dry docks with loads. The remainder was to be paid thirty days after completion and proper and suitable tests with varied load conditions'. It was further provided that Nairn was to do all the work and furnish all the materials and to ‘provide everything necessary for a proper completion of the agreed on work’. The agreement further provided that all the covenants therein ‘apply to and bind the parties hereto and their legal representatives. Installation to cover installing one fifty-horse power and one thirty-horse power motor of Westinghouse Electric and Manufacturing Company; sleeve bearing motors together with all equipment both electric and mechanical and any material or labor not specifically mentioned but necessary to be supplied and installed as though mentioned’. The second count alleges the defendant Westinghouse Electric and Manufacturing Company was engaged in the business of manufacturing, vending, reconditioning, repairing and installing various kinds of electrical and mechanical equipment and appliances, including electric motors; that during the months of October and November, 1937, said company ‘by its servants, agents and employees in furtherance of the work of...