97 N.J.L. 530 | N.J. | 1922
The opinion of the court was delivered by
This is an appeal from a judgment entered on the verdict of a jury in the Atlantic County Circuit Court in an action commenced by attachment. The plaintiff below was the Aerial League of America, a corporation, which held from May 20th to May 30th, 1920, an aeronautic exposition on the Steel Pier at Atlantic City. The defendant below was the Aircraft Fireproofing Corporation, a company engaged in the manufacture and exploitation of a material for fireproofing airplanes. On May 1st, 1920, one Charles W. Iverwood, an employe of the defendant, called at the New York office of the Aerial League and saw
The complaint alleges an oral agreement for the one thousand six hundred feet of space made between Woodhouse, as agent of the plaintiff, and Kerwood, as agent of the defendant, modifying the -written agreement of May 4th, 1920. The defence was that Kerwood had no authority from the defendant to modify the written contract or to make a newr contract for the one thousand six hundred square feet of space.
The defendant proved by its assistant treasurer that Kerwood was hired as a pilot or operator to test and exhibit its planes, and that when not so engaged, he did the work of a messenger of the company; that he had no express authority to modify the written contract of May 4th or make a new contract for the one thousand six hundred square feet of space. The testimony of Woodhouse shows that when the contract for the one hundred and fifty square feet of space was broached that Kerwood only secured the information with respect to the space and the price and then left the office of the plaintiff corporation with a form of contract, ostensibly for the purpose of reporting to his superiors, and having them dispose of the matter. Three days later Kerwood returned with the contract executed and a cheek in payment of the space taken under the contract. It would seem as if there could be no stronger evidence of Kerwood’s lack of power to make a contract for the defendant than the course taken by him after his first interview with Woodhouse. In the later interview between them with reference to the renting of the one thousand six hundred separe feet of space much the same course was pursued as Kerwood left, as Woodhouse says, after engaging the space, with a contract to be signed by his company, and returned with a check for $1,300. The fact that the contract was not signed, the check not delivered and the space not used leads to the conclusion that either Kerwood’s suggestion carried little, if any, weight with his superiors, or that he had not the courage to report to those in authority
The judgment is reversed and a venire de novo awarded.
For affirmance — None.
For reversal — The Chancellor, Ci-iiee Justice, Sivayze,' Trenchard, Parker, Bergen, Minturn, Black, Katzenbach, White, Heppenheimer, Williams, Gardner, Ackerson, Van Buskirk, JJ. 15.