81 N.J.L. 717 | N.J. | 1910
The opinion of the court was delivered by
This is an action on contract brought by the city of Bayonne to recover the price of water averred to have been sold and delivered by the city to the de^ fendant company from June 1st, 1903, to February 20th, 1906, at the rate of one dollar per thousand cubic feet.
The defendant, for a number of years prior to 1904, had been a large consumer of city water at its plant at Constables Hook, and had paid for the quantity consumed each month as indicated by twenty-three meters installed at various places upon its property by the city,.this being the only method of determining the amount of water delivered to it by the city, prior to the 1st of June, 1903. On that date the municipality installed two large check meters at the intersection of avenue I and East Twenty-second street, a distance of more than a quarter of a mile from the nearest supply pipe running to the plant of the defendant company. These two meters were intended to measure all of the water supplied to consumers in the Constables Hook territory, there being seven of them beside the defendant, and all of them being manufacturing concerns. Upon the premises of each of these other consumers meters were also installed by the city for the purpose of measuring the water supplied to them. Early in April, 1904,'the city installed another check meter (known in the case as the barrel factory meter) upon a main through which only the water supplied to the seven other consumers passed.
On the 1st "of January, 1904, the city having theretofore
The present suit is brought to recover for the excess water winch the city claims has been received by the defendant at the contract price of one dollar per thousand cubic feet. The trial of Hie case resulted in the direction of a judgment of nonsuit, and the present writ is sued out to test the validity of that judgment.
The following was the case made by the plaintiff as to sale and delivery: Two employes of the water department testified that during their service in* the department they had read the avenue I meters and the barrel factory meter; that they entered their readings in books kept for the purpose and turned those books into the department. Their books, if in the court room at the time of the trial, were not identified by them. The readings of one of the witnesses covered a period of about seven months immediately preceding the 1st
Ordinarily, books of account are legitimate prima facie evidence to show the sale and delivery, in the usual course of business, of personal property. Oberg v. Breen, 21 Vroom 146. And so, if the plaintiff had put in its books showing the account against the defendant, without explanation as to the manner in which it was made up, and then rested, it would have established a prima facie case against the defendant, for the books apparently show the sale and delivery to the defendant of the amounts of water specified therein. But the testimony of Mr. Hickey disclosed that the account in the
A part of the excluded evidence was offered for the purpose of showing the probability of breaks existing in the watqr mains upon the defendant’s property, due to its negligence, and the consequent loss of water as the result of such breaks. The suit being upon a contract for water sold and delivered to the defendant at an agreed upon price, testimony showing a right in the plaintiff to recover damages from the defendant for the negligent performance of an alleged duty which the latter owed to the former (conceding that such duty existed), had no bearing upon the matter in issue, and was properly excluded because of its immateriality.
Other excluded evidence was that of experts called to express their opinions as to the conclusions to be drawn from the variations in the readings of the two sets of meters, and the fluctuations 'in those readings, which sometimes showed a greater, and sometimes a less, quantity of water unaccounted for by the twenty-three meters in the defendant company’s plant. But expert opinion is valueless unless it is rested upon the facts which are admitted or are proved. The questions put to the experts in this case assumed that the avenue I and the barrel factory meters accurately registered the volume of water which passed through them, a fundamental fact which, as we have already stated, was neither admitted nor proved. The ruling of the trial court excluding this line of testimony was, therefore, proper.
The trial court also refused to admit in evidence the notebooks of meter readers showing the results of their readings during the period covered by this litigation, or to permit Mr. Hickey, the water registrar, to read from them. The persons who transcribed the readings into these books were not called to identify them or to prove their accuracy. The theory of the plaintiff seems to be that the}7 proved themselves. This theory we incline to think unsound. See Lindenthal v. Hatch, 32 Vroom 29. But, assuming the contrary, they were
The plaintiff further complains that an offer to show that no change or repairs to the avenue I meters were made at any time after their installation was .improperly excluded. The purpose of this offer was to show that, these meters were in repair. But it does not at all follow that, because they were not repaired, they did not need repair; and this is particularly so in view of the testimony of Mr. Hickey that all meters get out of order at times. The rejected offer did not carry with it any suggestion that the meters had been examined and found to be apparently in good order. On the contrary, it was equally fair to infer from it that no examination, much less a test, had ever been made of either of the meters at any time after their installation. This offer was, therefore, properly refused.
The other errors assigned upon the exclusion of evidence are disposed of by what has already been said.
The judgment under review will he affirmed.
For affirmance—The Ciitef Justice, Garrison, Swayze, Bergen, Voorhees, Minttjrn, Vredenburgh, Vroom, Dill, Oongdon, JJ. 10.
For reversal—Tile Chancellor, Trenchakd, Parker, Bogert, JJ. 4.