Waat Program Serv. Inc. v. Carroll

• Decision Date: 29 January 1948
• Docket Number: No. 19.,19.
• Citation: 57 A.2d 4,136 N.J.L. 574
• Parties: WAAT PROGRAM SERVICE, Inc. v. CARROLL et al.
• Court: New Jersey Supreme Court

136 N.J.L. 574

57 A.2d 4

WAAT PROGRAM SERVICE, Inc.

v.CARROLL et al.

No. 19.

Court of Errors and Appeals of New Jersey.

Jan. 29, 1948.

Appeal from Circuit Court, Essex County.

Suit by Waat Program Service, Incorporated, against Sonny Carroll and in the alternative Sonny Carroll Supper Club, Incorporated, for balance allegedly due under a contract wherein the defendant filed a counterclaim. From a judgment for defendant on his counterclaim, the plaintiff appeals.

Affirmed.

The CHIEF JUSTICE, EASTWOOD, and BURLING, Justices, and SCHETTINO, Judge, dissenting.

Joseph Schoenholz, of Newark, for plaintiff-appellant.

Sigmund C. Bernstein, of Newark, for defendants-respondents.

McLEAN, Judge.

This is an appeal from the Essex County Circuit Court (Judge Joseph L. Smith, presiding) wherein a judgment for the defendant was entered on his counterclaim. The suit was originally commenced in the District Court by the plaintiff, WAAT Program Service, Inc., for the sum of $330, the balance claimed to be due under a contract for the furnishing to defendant of certain radio lines and wires and the services of an engineer and announcer for broadcasting radio programs from a club owned by defendant, known professionally as Sonny Carroll. The record was corrected to his proper name, Ozzie W. Carroll. Carroll filed a counterclaim seeking to recover $1,200 due for services as an entertainer and singer under a contract with the plaintiff, which services were rendered over radio station WAAT. The case was then removed to the Circuit Court.

At the trial Carroll admitted his liability with respect to the claim of the plaintiff and the trial court accordingly directed the entry of a judgment against him. The issue tried out and submitted to the jury was the liability of the plaintiff to Carroll on his counterclaim.

The principal defense was that there could be no liability on the part of the plaintiff corporation because it was not in existence at the time the contract alleged by the defendant was entered into. Carroll claimed to have entered into the contract in March, 1944, for performances five or six times a week at a minimum wage of $12 per program, the union rate, with a possibility of more if a sponsor were secured. No sponsor was secured. The services were rendered during the months of April, May, June, July and August, 1944. It appears from the proofs that the plaintiff corporation came into existence on June 23, 1944, or thereabouts. Judge Smith submitted to the jury the question of whether or not, in view of the conduct of the plaintiff in accepting the services of the defendant and in view of the negotiations had by defendant with one Rosenhaus, the president of the plaintiff corporation and the man who had originally engaged defendant and with whom defendant dealt throughout, there had been a ratification and adoption by the corporation of the contract negotiated by Rosenhaus....