Wait v. Krewson

• Decision Date: 04 June 1896
• Parties: WAIT v. KREWSON.
• Court: New Jersey Supreme Court

35 A. 742

59 N.J.L. 71

WAIT

v. KREWSON.

Supreme Court of New Jersey.

June 4, 1896.

Certiorari to court of common pleas, Middlesex county; Rice, Judge.

Action by Isaac H. Krewson against James Wait. Judgment for plaintiff, and defendant brings certiorari. Reversed.

Argued June term, 1896, before DEPUE, VAN SYCKEL, and GUMMERE, JJ.

Theodore Strong, for plaintiff.

James Parker, for defendant.

DEPUE, J. This suit was brought originally before a justice of the peace, and appealed to the court of common pleas, and resulted in a judgment in favor of the plaintiff on the verdict of a jury; whereupon the defendant sued out a writ of certiorari. The reasons relied on for a reversal of this judgment are:

1. That the court refused to postpone the trial, on account of the absence of a material witness for the defendant. The case was regularly set down for trial on the 3d day of May, 1894. The defendant, who is the plaintiff in certiorari, appeared by counsel. The defendant's counsel applied for an adjournment on account of the absence of Isaac C. Acken, a material witness for the defendant, in consequence of sickness. He laid before the court an affidavit made by the defendant setting out facts showing the materiality of the testimony of the witness, and stating that the witness was confined to his home, and in bed, by reason of his illness, and also the certificate of a physician that the witness was suffering from the effects of a recent illness, and incapacitated thereby from going to New Brunswick and giving evidence. The court refused to postpone the trial and the jury was sworn. The defendant's counsel then asked that the jury stand over for one week for the trial of the cause. This motion was denied, and the case was tried in the absence of the defendant and his witnesses, and resulted in a verdict for the plaintiff for $148.15. The defendant's counsel then applied for a rule to show cause why a new trial should not be granted. This application was adjourned from time to time until May 14, 1894, and was then argued, and extended until the condition of the witness Acken would permit him to give his testimony before a master. The testimony of the witness not having been taken, the plaintiff's attorney on the 29th of August took a rule upon the defendant to close his testimony by the 10th of September following. This rule was served on the defendant's attorney, and, not having been followed up by taking the testimony, the rule to show cause was discharged, with leave for the plaintiff to proceed and collect his judgment. The application for adjournment on account of the absence of a material witness is addressed to the discretion of the court, and the discretion of the trial court will not be interfered with unless it appears that injustice was done. Ogden v. Gibbons, 5 N. J. Law, 518-531. As was said by Mr. Justice Southard in the case just cited: "The inquiry in all cases is whether injustice has been done. Has the party been injured? If he has not, no good reason can be given why he should receive the favor of trying his case over again." The rule entered the 14th of May was made by consent. It indicated the purpose of the court to grant a new trial if Acken's testimony should be material for the defendant. His testimony was not taken, although there was opportunity to take it for nearly four months. No explanation has been given of the defendant's failure to take this testimony. There was laches in the failure to follow up this rule, and it must be assumed at this time that Acken could not give any testimony material to the defendant's case.

2. That the court denied the motion of the defendant's counsel that the jury be directed to find a verdict for the defendant. It appears that by a lease under seal, executed by both the parties, Wait leased his farm to Krewson for the term of one year and three months, viz. from January 1, 1892, to April 1, 1893, to be farmed by him on shares. The plaintiff's suit is upon a book account. The lease was in evidence before the justice, and is sent up by the pleas as part of the record of that court. For damages arising upon breaches of covenants and agreements contained in the lease, the suit should have been upon the lease. The plaintiff's statement of demand sets out simply items of book account, but it appears on the face of the demand that part of the items in the account are such as are referable to the defendant's failure to comply with the terms of the lease. The only evidence touching these items was the plaintiff's books of account, and his testimony that they were his original books of entries. The remedy for a breach of covenant involves two propositions,—the fact that the covenant was broken, and damages resulting therefrom. Of these facts, books of account are not competent evidence. Swing v. Sparks, 7 N. J. Law, 59-61. The testimony at the trial was quite meager. It consisted entirely in the production of two books purporting to be books of account, and the testimony of the plaintiff. The plaintiffs testimony was confined to proof that the books produced were the books of original entry, in which he put the items down as they were transacted. The plaintiff then rested, and the defendant's counsel moved the court to direct a verdict for the defendant on the ground that the plaintiff had not shown any contract between him and the defendant; that he simply showed a book account, without showing what the account arose on, or what the subject-matter of it was. The plaintiff was then recalled, and, being asked by the court on what the account arose, testified that some of it was for milk, and for a horse the defendant took away, and for two shoats that belonged to him, that defendant took out of the place. "Q. You charged him for these? A. Yes, sir. Q. It was your property? A. Yes, sir. Q. And that is what your account is made up from? A. Yes, sir; and the balance he owed me from the 16th of February." The charge of February 16, 185)3, appears in the plaintiff's statement of demand as follows: "Feb. 16. Mr. Wait gave me a duebill to the amount of $25.92 in settlement." The shoats and horses are charged as follows: "I claim the sum of $20.00 for two shoats he valued at $20.00. Mr. Wait took the horses away from me March 10, which I claim damage of $30." Of these three items the books of account were not competent evidence. They amount to $75.92. The charges after February 16th consist of several items, in the aggregate amounting to $16.50. In what manner these items arose does not appear. After the examination of the plaintiff was concluded, the counsel of the defendant renewed his motion for a direction that the jury find for the defendant, which motion was denied and an exception taken. The court then...