Crowley v. E. Homan Co.

3 N.J. Misc. 968 | N.J. | 1925

Per Curiam.

This suit was brought to recover $400. The plaintiff in the state of demand charges that on January 7th, 1922, the defendant agreed to sell the plaintiff a Stndebaker Special Six coupe automobile, 1922 model, but, instead, he delivered at the agreed price a 1921 model of said automobile; that plaintiff did not discover the misrepresentation until he attempted to exchange the automobile for another automobile in December, 1924. The case was tried by the court without a jury, resulting in a judgment for the plaintiff for $400, and $22.80 costs. The appellant files eight specifications of the determination with respect to which it is dissatisfied in point of law. Nos. 1, 2, 3 and 4, error in entering judgment for the plaintiff,- failing to enter judgment for the defendant, refusing to nonsuit or direct a verdict in .favor of the defendant. These points require no discussion. No. 5, error in admitting testimony tending to alter or vary the terms of th" written contract, a bill of sale of the automobile. Exhibit fí J. This bill of sale Is a complete instrument, signed and acknowledged before a notary public, dated January 7th, 1921. So, the written agreement. Exhibit P 2. No. 6, error in permitting a witness, Abe Balbot, to testify from a book known as the Blue Book of the National Used Car Market Report, published by the Chicago Automobile Trade Association. No. 7, error in permitting the witness, Abe Talbot, to testify that the difference in \alue between a 1921 and 1922 Studebaker Special Six coupe was the sum of $575. No. 8, error in awarding the amount of damages based on the evidence of the plaintiff's witness, Abe Balbot.

The judgment will have to he reversad for trial errors. It was reversible error to admit oral testimony to vary or alter the, terms of the bill of sale (Exhibit Pi), and the written agreement (Exhibit P 2), under the well-recognized cases of Naumberg v. Young, 44 N. J. L. 331 oral testimony will not be permitted to supply terms with respect to which the. writing is silent. Castelbaum v. Wolfson, 92 Id. 165. There is nothing in the bill of sale (Exhibit P 1) or the written agreement (Exhibit P 2) about a 1922 model. So, it was error to permit a witness to testify from a book known as the Blue Book of the National Used Car Market Report, published by the Chicago Automobile Trade Association. The only justification for the use of this book in the state of facts sent up with the record is, “that the said book from which he wa« reading was one generally used in the automobile trade.” This is not sufficient to admit it in evidence or to- permit it to be read from under the case of E. Clement Horst Co. v. Breidt City Brewery, 94 Id. 230.

The judgment of the Second District Court of Jersey City is reversed and a revire de novo awarded.