76 N.J.L. 735 | N.J. | 1908
The opinion of the court was delivered by
The Weber Steel Concrete Chimney Company contracted to build a factory chimney for the Philadelphia Watch Case Company, the agreed price being $4,600, of which $1,500 was paid during construction, and this suit was brought to recover the residue, payment having been refused because, as defendant claims,, the work had not been performed in substantial compliance with the contract. The plaintiff sues as assignee of the Weber company. At the close of the plaintiff’s case defendant moved for a direction in its favor for $1,500, the amount paid on the contract price, upon the ground that the plaintiff had not shown that the contract had been performed or the chimney constructed in a “first-class and workmanlike manner,” and also that the construction had not been approved and accepted by Dr. Drysdale, as defendant insists is required by the contract. This motion was refused, an exception taken, and error assigned thereon. On the question of performance there was evidence from which a jury might properly infer that the work had been done in a first-class and workmanlike manner, substantially as required by the contract, and therefore a question of fact for the determination of a jury was pre
The defendant also assigns error on exceptions relating to the admission of expert testimony. We have carefully examined the proofs relating to the qualifications of the expert witnesses, and are of opinion that there was sufficient legal' evidence to justify the finding of the trial court that the witnesses had the necessary experience to qualify them to give an expert opinion. The qualification of an expert is to be determined by the trial court as a question of fact, and its
Two letters were admitted in evidence over objection by the defendant, one dated February 7th, 1907, which, it is admitted, was prior to, and the other, April 26th, 1907, after, the commencement of this suit. Both letters were written by the attorneys of the Weber company to the defendant, hut no objection to their admission was rested upon any lack of authority in the attorneys to act for the Weber company in making the offer to repair, as expressed in the letters. The letter of February 7th, 1907, has not been printed as a part of the case prepared by the plaintiff in error, and we have no knowledge of its contents beyond that disclosed by counsel when he offered it in evidence, which was that it contained an offer, on the part of the Weber company, to repair any defects in the chimney which were pointed out, or to be pointed out, and a request that if any existed an opportunity be given to repair the same. The objection to its admission was that it was incompetent, immaterial and irrelevant to the issue, but no objection was made that the contents of the letter was other than as stated, and if the defendant wished to rely upon any other matter, it should have printed the exhibit as a part of the record. The case shows that the defendant had previously written to the Weber company that the construction of the chimney was defective, and if it should conclude to accept it, that it would not do so unless it was furnished with a bond to indemnify it against any loss it might sustain by reason of the chimney not being properly erected, and that it would in any event require the chimney to be approved by an expert of its own selection. In view of the fact that the de
In the letter of April 26th, 1907, sent to defendant after suit was commenced, the Weber company, after stating that although its engineer had reported to it that the chimney conformed to the specifications, yet as the defendant contended that the lower ring of the chimney was soft, and in consequence rendered unstable, offered to renew this section, and inquired whether the defendant was willing to permit the chimney company to replace the ring. After counsel had closed their argument to the jury the plaintiff asked permission to withdraw the letter, and to have the jury instructed that they should disregard it. This was permitted, and an exception taken to such ruling. If it he conceded that the admission of the letter was an error, it worked no injury to the defendant, for the same offer to repair was contained in the letter of February 7th, 1907, and in addition to the offer it contained a notice that if the property was destroyed, which defendant threatened, it would be held liable for the loss which the Weber company might sustain thereby. It appeared that defendant had taken down the chimney after suit was brought and before the trial, in disregard of the notice. In offering to withdraw the letter from the consideration of the jury, the plaintiff was endeavoring to cure any •error arising from its admission, a proceeding to which the defendant objected, upon the gro.und that the letter, having-been admitted and read to the jury, it was entitled to have It remain as an exhibit in the cause, although it was, as it
Error was also assigned on that part of the charge to the jury which instructed them that the defendant was bound to afford the plaintiff a reasonable opportunity to repair any defects, and if such defects could have been remedied within a reasonable time, and without loss to the defendant, it had no right to demolish the chimney without affording such opportunity. We find no error in this, for by the contract the Weber company agreed to repair any defects, and certainly the defendant was bound to afford it an opportunity to do so within a reasonable time after they were discovered.
We .have considered the other assignments of error presented for consideration, and do not find in any of them any legal justification for a reversal.
The judgment below is affirmed.
For affirmance—The Chancellor, Chibe Justice, Garrison, Swayze, Eeed, Trenchard, Bergen, Yoorhbbs, Minturn, Bogert, Yroom, Dill, J.J. 13.
For reversal—Parker, Yrbdenburgh, Green, Gray, J.J. 4.