83 N.J.L. 361 | N.J. | 1912
The opinion of the court was delivered by
This is the defendant’s appeal from a judgment in favor of the plaintiff entered upon a verdict of a jury in the District Court.
The action was to recover for, first, work done, and second, for materials sold and delivered in connection with the steam heating plant in the defendant’s house.
No doubt the motions to nonsuit and direct a verdict were properly denied. A part of the claim was for work done, and the evidence as to that presented a jury question. As we shall presently point out, the proofs upon the other branch of tfre claim likewise presented a jnry question as to that.
The defendant insisted that there was no delivery and acceptance of the materials.
Of course, to recover in an action for the value of goods sold and delivered, there must be proof of delivery and acceptance. Perdicaris v. Trenton City Bridge Co., 5 Dutcher 367; McNeal v. Braun, 24 Vroom 617; Lummis v. Millville Manufacturing Co., 43 Id. 25; 2 Add. Cont. (Morgan’s ed.), § 588.
The learned trial judge charged the jury as a matter of law, that the materials “were delivered to¡ the defendant.”
That was erroneous. The question whether there had been a delivery was, under the evidence, for the jury. The materials in question consisted of a “fire pot” and “section” of a steam boiler. The materials were never installed, and the evidence upon the part of the defendant tended to show that before the materials were brought to.his premises he caused the plaintiff to be notified “not to deliver them,” as they were “not needed,” and that the plaintiff said “dll right.” It was, therefore, erroneous for the judge to determine that question as a matter of law.
The judgment under review will be reversed and a venire de novo awarded.