67 N.J.L. 566 | N.J. | 1902
The opinion of the court was delivered by
The first question to be decided in this cause
arises from the fact that the judge of the Court of Common Pleas in Union county, on the request of the justice of the Supreme Court presiding in that district and in accordance with the act of April 2d, 1891 (Gen. Stat., p. 1028), now sections 37 and 38 of the act of March 23d, 1900 (Pamph. L., p. 349), held thu Union County Circuit Court at which the case was tried. The plaintiff insists that it was a violation of the constitution thus to organize the Circuit Court.
Waiving the question whether the plaintiff, who brought on the trial, can now object to the competency of the tribunal, we think the court was legally constituted.
The constitution (article 6, section 5, paragraph 2) provides that “the Circuit Court shall be held in every county of this state, by one or more of the justices of the Supreme Court, or a judge appointed for that purpose.” It is silent
Under these provisions it is clear that the power of directing how such a judge should be appointed was vested in the legislature as a part of the general legislative authority.
In virtue of that authority the legislature passed the act of 1891, which, in effect, declared that a person appointed to be a law judge of the Court of Common Pleas should, ipso facto, be appointed to hold the Circuit Court, and in view of that law the judge who presided at the trial was appointed and duly commissioned by the' governor. In our judgment the constitution, the statute and the appointment and commission completely vested in the judge the power to hold the Circuit Court.
But it is argued that the clause of the statute which confines the exercise of his authority to times when he is “thereunto requested by the justice of the Supreme Court,” in effect, confers on such justice the power of appointing the Circuit judge, and thus is inconsistent with the constitutional division of the powers of government:
We do not so regard the matter. There are many instances, in every department of the- public service, where the right of an officer to exercise his authority may depend upon some voluntary act of another officer in whom the same authority resides, and who possesses the primary right to perform the official functions; but in such cases it has never been considered that the official authority of the substitute was derived from the officer who gave place to him.
The act of 1891 conferred the power of appointing a person to hold the Circuit Court upon the governor, with the advice and consent of the senate, such power to be exercised in the appointment of a judge of the Common Pleas. But, because the justice of the Supreme Court had constitutionally the right to hold the Circuit Court, and he could not hold it in conjunction with another judge who was not a justice of the Supreme Court, it was proper that the legislature should
We discover no infringement of constitutional dictates in the organization of the court by which this case was tried.
We proceed therefore to consider the complaints made as to the mode of trial.
The suit was brought to recover the price of laying four concrete floors and of constructing four nests of tanning vats, under a written contract, by which the plaintiff agreed to do the work according to certain plans and specifications in a first-class manner. The contract contained also the following clause: “The floors specified to have our guarantee not to crack or break up for a period of five years, and the vats to be water tight from all causes of natural wear and tear for the period of five years from the date of completion.” The real controversy turned on the claim of the defendant for a reduction in the price because the work was not done and completed as the contract required. On this claim the plaintiff contended that the defendant could have no redress except under the written guaranty.
We deem this contention groundless.
The plaintiff’s obligation was twofold — first, to do the work according to the plans and specifications in a first-class manner, and second, to guarantee the floors not to crack and break up, and the vats to be water tight from all causes of natural wear and tear for a period of five years. Each branch of this obligation was distinct from the other. The plaintiff could not fulfill its obligation by laying floors and making vats otherwise than as specified, even though the floors did not crack and the vats did not leak for five years, any more
This view disposes also of the plaintiff’s request “that the jury should be instructed to consider the value of the warranty in estimating the defendant’s damages.” The warranty had no bearing on the claim that the original construction was defective.
The next complaint of the plaintiff is because of the refusal of the trial court to charge the jury that “if the failure of the defendant to have the place ready for the plaintiff to begin work, at the proper time, caused the work to be delayed until cold weather had set in, the plaintiff is not liable for defects attributable to the cold weather.”
To this there are two answers.
The first is that the plaintiff had not presented such an issue by its pleadings. Its declaration was on the common counts, in response to which the defendant pleaded the general issue, and gave notice that it would prove defective performance of the contract and claim to recoup the consequent damages. If the plaintiff intended to avoid this claim, by showing that the defect was caused -by the defendant’s failure to prepare the place for the ]31aintiff’s work in accordance with the contract, it should have given notice of such special matter, under section 119 of the Practice act. Not having done so, the present ground of complaint is precluded.
The second answer is that the testimony at the trial did
The next complaint of the plaintiff is that the court refused to admit in evidence certain guaranties which the plaintiff 'had given to other parties, for the purpose’ of showing the meaning of the guaranty clause in the agreement with the defendant.
This evidence was rightly excluded, for there is no ambiguity on this head in the present contract, and if there were, the variant forms of contract between the plaintiff and other parties would throw no light on its meaning.
The last complaint made in argument was as to the plaintiff’s claim of $50.92 for extra work. We agree with the trial judge that there was no evidence that the defendant had authorized this work or become liable for it.
Other exceptions taken at the trial were not adverted to by counsel before this court, and hence need not be considered. Lewis v. Lewis, 49 Atl. Rep. 453.
We find no error requiring reversal of the judgment, and it is affirmed.
For affirmance — The Chancellor, Chief Justice, Van Syckel, Dixon, Garrison, Collins, Fort, Garretson, Hendrickson, Pitney, Bogert, Krueger, Adams, Vredenburgh, Vroom. 15.
For reversal — Hone.