Zurcher v. Modern Plastic Machinery Corp.

• Decision Date: 30 December 1952
• Docket Number: No. A--554,A--554
• Citation: 24 N.J.Super. 158,93 A.2d 778
• Parties: ZURCHER v. MODERN PLASTIC MACHINERY CORP.
• Court: New Jersey Superior Court — Appellate Division

Page 158

24 N.J.Super. 158

93 A.2d 778

ZURCHER v. MODERN PLASTIC MACHINERY CORP.

No. A--554.

Superior Court of New Jersey, Appellate Division.

Argued Oct. 27, 1952.

Decided Dec. 30, 1952.

Forster W. Freeman, Jr., and A. Leo Bohl, Paterson, argued the cause for the respondent Gotthard J. Zurcher (Freeman, Buttermore & Freeman, Paterson, attorney).

Peter Hofstra, Paterson, attorney for the respondent Harry Haller.

John A. Masiello, Paterson, attorney for the respondent Paterson Machine Co., Inc.

Ervan F. Kushner, Paterson, argued the cause for the appellant (Brenman & Susser, Paterson, attorneys).

Before Judges McGEEHAN, BIGELOW and JAYNE.

The opinion of the court was delivered by

BIGELOW, J.A.D.

Zurcher was engaged by the defendant to build some machines. After he had completed the work he assigned certain sums out of the contract price to his two co-plaintiffs, Haller and Paterson Machine Co., Inc. The three sue for the amount due under the contract. After the plaintiffs had put in their evidence at the trial, Haller and the Machine Co. were allowed by the court to discontinue. The trial proceeded on Zurcher's claim alone and resulted in a verdict in his favor for the full contract price as asserted by him.

The defendant-appellant's first point is that the court erred in excluding from evidence the defendant's duplicate original of the contract or purchase order sued upon. The copy which the plaintiffs put in evidence did not specify the price, but instead stated, 'Price in accordance with verbal understanding had with our Mr. W. J. Johnson, less materials furnished by us.' On cross-examination Zurcher said that when he received the purchase order the quoted passage did not appear on it; that he did not know who had made the addition, though he hinted that defendant's representative Johnson may have done it. Later, the defendant offered its copy to show that it bore the same reference to the price as did the copy which was already in evidence, but the court rejected the offer because of pencil marks on the copy. Since the paper that the defendant offered was not marked for identification and has not been submitted to our inspection, we cannot determine whether the pencil marks were such as might then and there have been erased, or covered up, or were not prejudicial to plaintiffs, or whether they were of such a character as should properly have led to a rejection of the offered exhibit. We must assume that there was sound ground for the court's action. Even if there were error, the defendant was not harmed, for both parties agreed that the consideration was a price fixed orally by Zurcher and Johnson, although they disagreed as to what that price was.

When the court had finished charging the jury, defendant's counsel said he had some objections to the charge which he desired to make 'outside of the presence of the jury.' The learned judge asked him to state his objections before the jury retired so that the court might make any necessary corrections in the charge. Counsel declined to comply with the court's suggestion. The jury retired and the court declined thereafter to receive counsel's objections to the charge. We find no error in this feature of the case. Objections to the charge should be made before the jury retires. Opportunity should be given counsel to make his objections out of the hearing, but not necessarily out of the presence, of the jury. Usually counsel approach close to the bench and make their objections in a voice that the jury cannot hear.

The other objections relate to the dismissal of the claims of the assignees. No order of dismissal is printed in the appendix but we assume the order in its terms follows the oral pronouncement of the judge. Under the circumstances, since the contrary is not specified, the dismissal is without prejudice. Rule 3:41--1(b). The assignees can institute a new suit against the defendant at any time and perhaps recover, despite the judgment in favor of Zurcher, for notice of the assignment charges the debtor with a duty to pay the assignee. Brown v. Dunn, 50 N.J.L. 111, 11 A. 149 (Sup.Ct.1887); Russell v. Fred G Pohl Co., 7 N.J. 32, 41, 80 A.2d 191 (1951). The motion for the voluntary dismissal of the assignees' action, although resisted by defendant, was granted because the court was of the opinion that the assignees were not proper parties plaintiff; that they had no legal interest in the subject-matter of the suit. 'They would eventually have been stricken by the court on his own motion.'

Before the reorganization of our judicial system in 1948, it was settled that the assignee of a part only of a debt could not maintain an action in a law court unless the debtor had consented to the assignment. The foundation of the rule was the protection of the creditor against...