94 N.J.L. 187 | N.J. | 1920
The plaintiff in this suit is the assignee of a chose in action of H. W. Palen’s Sons, a subcontractor of P. E. Kenny & Company, which had entered into a contract with the board of education of Morristown, in the county of Morris, to provide all the materials and to do- and perform all the work required in the general construction of a new high sdhool building in Morristown, New Jersey. The part of the contract pertinent to the present issue-provided that if the contractor should 'refuse or neglect to prosecute the work with promptness, the school board, called, the owner, should be at liberty, three days after a service of a written notice upon the contractor of its intention so to do, to terminate the contract, and enter upon the premises for the purpose of completing the work, “and to take possession, in whole or in part, of any or all materials, tools, and appliances thereon, and to employ my other person or persons to finish the work, * * * and to deduct the expenses incurred therefor from any money then due,. or • to become due, t-o the contractor under this contract.” Tlhe contractor entered into a written agreement with-H. W. Palen’s Sons to furnish all the materials and perform all the carpenter work required in the erection and entire completion of the building according to the original contract and specifications. This contract provided that if the subcontractor failed to perform, the general contractor should be at liberty to terminate tibe emp-lojment, and to enter upon the premises and take possession of and use, for the purpose of completing the work under the subcontract, all materials, tools, and appliances thereon and to employ other persons to finish the work. The original contractor having defaulted, the owner took possession of certain materials which the subcontractor had sent to the premises for the purpose of performing his contract, and they were used b}r the owner in the completion of the building. The subcontractor, through its assignee, brought suit to recover for the materials so taken and used. At the close of the case the plaintiff moved for a direction
As to the first point there was not a particle of evidence to go to the jury upon the question of the transfer of title from Palen’s Sons to the Kenny company, the original contractor. All the proof shows is that Palen’s Sons shipped the goods to the premises consigned to themselves, and' until iliey were incorporated in the building, or there was some act on the part of the subcontractor which indicated, or permitted an inference, that the title had passed to the contractor, the material remained fire property of the shipper. The trial court apparently misunderstood the effect of the opinion of Justice Swayze for this court in Wildwood Board of Education v. Bright et al., reported in 91 N. J. L. 579, for lie said in denying the motion for a direction for the plaintiff, “1 am more- influenced by Mr. Justice Swayze’s opinion than T am by anything else, because it is a New Jersey case, and because the facts are somewhat similar to those in this case.”' Tn the Wildwood case there was a delivery of the goods, but the defence was- that it was a conditional sale and that no title passed by the delivery because of the condition, which was that the contractor to whom the
The judgment will be reversed, and a new trial awarded.
For affirmance—None.
For reversal—The Chancellor, Chief Justice, Swayze, Trenci-iard, Parker, Bergen, Minturn, Kaliscti, Black, Wi-iite, Heppeni-ieimer, William^; Taylor, Gardner, Ackerson, JJ. 15. '