134 A. 86 | N.J. | 1926
This is a suit by contractor against owner to recover a balance claimed to be due, substantially on a quantum meruit, for extensive alterations and repairs to the defendant's house. Plaintiff sued as on an oral contract; defendant set up in the answer that the contract was *323 in writing and for a stipulated amount, and denied that any balance was due. On the trial plaintiff admitted the execution of a writing by the parties, but claimed that such writing was not the actual contract but a mere formality, as defendant and her husband wished to have a paper to show her father, who was expected to loan on the property, that there was a contract. The paper-writing appears to have been filed as a contract in order to bar mechanics' liens by others than the principal contractor.
The court granted a nonsuit on several grounds — first, relying on the rule in Fivey v. Pennsylvania Railroad Co.,
As to the husband's authority as agent, there was not only a jury question, but there was considerable evidence in support of the existence of that authority. He handled the matter throughout, and a good deal of the time in the actual presence of his wife and with her apparent assent. She also participated in the negotiations in conjunction with him. The nonsuit is not sustainable on this ground.
As to the bill of particulars, the suit, it is true, was begun as a mechanics' lien action, but it was by the contractor against defendant as "builder and owner," and the judgment for plaintiff in such a suit may be a general judgment as well as a special one. Comp. Stat., p. 3310, § 27; see Ennis v. Eden MillsPaper Co.,
But on the remaining ground we consider that the nonsuit was proper. The general situation on the facts has been stated, and no beneficial purpose would be subserved by going into details. In fine, the plaintiff admitted that he had voluntarily executed a writing purporting to be a contract for the general work of alterations and additions in question, which, with his assent, had been filed as a building contract; that he was fully aware of its contents, and that though it did not, as he claimed, express the real agreement, he had signed it under these circumstances. He refused to offer it in evidence or otherwise rely upon it. In this situation the trial judge properly ordered a nonsuit. The case is within the reasoning of Wharton v. Christie,
It was therefore not open to the plaintiff to rest his primary claim on an alleged oral arrangement instead of the written paper. That was what the plaintiff was allowed at the trial to do, in Osterling v. Hotel Co.,
On this record the judgment of nonsuit will be affirmed. It may be that plaintiff has a right of action on the written contract; as to this we express no opinion, but confine ourselves to the case and single ground of appeal as argued.
For affirmance — TRENCHARD, PARKER, MINTURN, KALISCH, BLACK, KATZENBACH, CAMPBELL, LLOYD, VAN BUSKIRK, JJ. 9
For reversal — THE CHIEF JUSTICE, WHITE, GARDNER, McGLENNON, KAYS, HETFIELD, JJ. 6. *326