Wallace, Muller & Co., Ltd. v. Leber

• Decision Date: 19 November 1900
• Citation: 65 N.J.L. 195,47 A. 430
• Parties: WALLACE, MULLER & CO., Limited, v. LEBER et al.
• Court: New Jersey Supreme Court

47 A. 430

65 N.J.L. 195

WALLACE, MULLER & CO., Limited,

v. LEBER et al.

Court of Errors and Appeals of New Jersey.

Nov. 19, 1900.

(Syllabus by the Court.)

Error to circuit court, Hudson county. Action by Wallace, Muller & Co., Limited, against Edward F. Leber and others. Judgment for plaintiff. Defendants bring error. Affirmed.

This writ of error brings up a Judgment in an action on contract. The action was founded on a written instrument, of which the following is a copy:

"Wallace, Muller & Co., Limited, New York, Sept. 20th, 1897. Messrs. Wallace, Muller & Co., Ltd., 46 Pearl St., City—Dear Sirs: In accordance with our agreement, we hereby guaranty to you that the duty on the 4,000 bags of Dutch sugar, bought to-day from Messrs. W. Bunge & Co., Rotterdam, through our mediation, shall not exceed $1.95 per 100 lbs. Any excess in duty which you may be called upon by the government to pay will be promptly refunded by us to you without any objections whatsoever. Yours, very truly, Leber & Meyer."

The sale and purchase referred to in the preceding instrument appears by the evidence contained in the bill of exceptions to have been effected by the following written instrument:

"Leber & Meyer. Importers, Exporters, and Commission Merchants. 3, 5 & 7 William St. and 3 South William St. Telephone 937 Broad. Cable address: Leber, New York, A. B. C. Code. Sold for account of Messrs. W. Bunge & Co., of Rotterdam, to Messrs. Wallace, Muller & Co., of New York City, 2,000 (two thousand) double 100-pound bags Dutch granulated sugar, W.S.R./G.S. shipment first week of October, and 2,000 (two thousand) double 100-pound bags Dutch granulated sugar, W.S.R./G.S shipment second week of October, from Holland, by steamer, at 12—6 (twelve shillings and six pence) per 112 pounds net, cost and freight Baltimore. Terms: Buyers agree to open letter of credit with their London bankers in favor of Messrs. W. Bunge & Co. for this purchase 90 days date or 60 days date, less 1/4 (one-quarter) per cent., a seller's option, and to cover marine insurance, inclusive of lighter risks. Leber & Meyer, Agents.

"Accepted. Wallace, Muller & Co., Limited."

The issues Joined were tried before Mr. Justice Lippincott, sitting without a Jury. His conclusions and findings were in favor of the plaintiffs, and Judgment was entered thereon.

Albridge C. Smith, for plaintiffs in error.

Skinner & Ten Eyck and H. R. Limburger, for defendant in error.

MAGIE, Ch. (after stating the facts). On behalf of defendants it is first contended that there was an entire failure to prove any consideration for the contract sued on. An examination of the conclusions of the trial Judge seems to indicate that this point was not presented to him, for no mention of it is made by him. None of the exceptions allowed by him are pointed at this supposed defect of proof. An exception, however, was allowed to the finding that plaintiffs were entitlea to recover $1,545.46, with interest, from defendants, on the ground that there was no evidence to warrant it if the issues had been tried with a Jury, an exception that the verdict was not sustainable because there was no evidence to warrant it would have been unavailable on error. To raise such a question on error, the trial Judge must have been requested to nonsuit, or to direct a verdict for defendants, because of the lack of some specified proof essential to recovery. The precise point relied on must have been presented to the mind of the trial judge, and ruled on by him. This doctrine, and the reasons for it, are stated in this court in Insurance Co. v. Barracliff, 45 N. J. Law, 543. It has been applied for like reasons by the supreme court in the review of verdicts upon rules to show cause. Jackson v. Traction Co., 59 N. J. Law, 25, 35 Atl. 754. It is entirely settled that upon error the finding of the trial judge trying the issue without a jury is as unassailable as the verdict of a Jury would be, and the Judgment founded thereon cannot be reversed if there was evidence capable of supporting the finding. Weger v. Inhabitants of Delran Tp., 61 N. J. Law, 224, 39 Atl. 730, and cases cited. It would seem to follow by analogy from the rule applied in jury cases, and for the same reasons that produced that rule, that an exception like that under consideration, which does not point out and specify the particular omission of proof relied on, is ineffectual to raise the objection in a court of error. Proper practice would seem to require that counsel for defendants, desiring to raise such an objection, should, at the close of plaintiff's testimony, or at the close of the whole case, formally request the trial judge to find for the defendants because of the omission of the particular proof then specified and claimed to be essential to plaintiff's recovery. But I think the practice in this respect has not been uniform, nor can I discover that it has been settled by any adjudication of a court of review. No objection to the consideration of the point so presented was interposed in the argument. For these reasons, and because the case leaves it uncertain whether or not the objection now made was in the mind of the trial judge, I have deemed it proper to consider it The objection is that there was no proof of the consideration of the contract sued on. It will be observed that the...