77 N.J.L. 709 | N.J. | 1909
The opinion of the court was delivered by
These three writs of error bring up for review judgments in favor of the defendants below entered in each ease upon the verdict of a jury in tire Cape May Circuit Court.
The plaintiff below, David B. Kaighn, is trustee for the Five Mile Beacli Lumber Company, a bankrupt. This company furnished one Garrison, a contractoT, materials which were used by him in erecting buildings for each of the three defendants. At the time Garrison was the vice president of the Five Mile Beach company.
Bv a stipulation of counsel made in writing before trial for the purposes of the trial, the defendants “admitted all the facts necessary to establish a mechanics’ lien in favor of the plaintiff against each defendant and the properties described in the liens on file, and that the defence is solely that of payment.” The effect of that stipulation was to limit the defence to that of payment. Hine v. New York Elevated Railroad Co., 149 N. Y. 154.
The evidence taken at the trial shows conclusively that each defendant paid to Garrison the full amount of money called for by their respective contracts with him, and therefore, in view of the stipulation, the only questions remaining were, first, whether these payments were made to him as contractor—as the party to whom the defendants were primarily responsible—or whether they were made to him as the agent of the Five Mile Beach Lumber Company in payment of the moneys which he, not the defendants, owed to that company, and secondly, if the payments were made to Garrison as contractor, had he paid his debt to the company.
The learned trial judge submitted the first question to the jury but not the latter.
The plaintiff contended that it conclusively appeared from the evidence that the payments were to Garrison as contractor, not as agent for the company, and assigned error upon exceptions taken to the refusal of the trial judge to charge appropriate requests to that effect, and also to what was charged.
We think the refusal of the court to so charge was erroneous. It appeared to be undisputed that each of the defendants had from time to time made partial payments to Garrison on account of their respective contracts made with him, and that finally each, at their respective residences, made settlement
The only possible remaining question was whether Garrison had paid his debt to the company. Since there must be a new trial it is unnecessary here to determine whether there was evidence other than that of the alleged releases (which were not offered as evidence of payment and did not tend to prove it) which required the submission of that question to the jury-
For the reasons stated the judgment of the court below in each of these cases is reversed, and a venire de novo awarded.
For affirmance—None.