26 A.2d 880 | N.J. | 1942
This is a contract case. Plaintiffs have a judgment in the amount of $353.73 arising out of a suit for breach of contract tried in the Second District Court of the City of Newark, without a jury. Defendants have appealed from that judgment upon the grounds that the contract upon which the action was predicated was illegal, illusory, and indefinite, and upon the further ground that there was a variance between the cause of action pleaded and proved.
The state of demand alleged that defendants sold to plaintiffs two loads of colored fowl of approximately 10,000 pounds a lot at 15 cents a pound, one load to be delivered on June 24th, 1940, and the other to be delivered on June 27th, 1940, payment to be made on delivery. It was further alleged that the first load was delivered but that the second load was not delivered. At the time the second load was to have been delivered the price of the fowl had advanced four cents a pound, and it was asserted plaintiffs were damaged in the amount they were obliged to pay for the fowl in excess of the contract price.
The state of the case was settled by the trial court. This, of course, constitutes the only record properly before us. We *477
are limited to the facts therein contained and cannot, as defendants would have us, consider the bill of particulars which was not offered in evidence. Hanley v. P. Ballantine Sons,
From the state of case as submitted, it appears that plaintiffs and defendants met with other poultry dealers whose employees were on strike, and plaintiffs and defendants entered into their oral agreement at this meeting. There was evidence to support the court's finding that the actual agreement between the parties carried the reservation that there might be deducted, so long as the strike lasted, from each load of 10,000 pounds of fowl to be delivered to the plaintiffs, such number of pounds as defendants might need for their own trade in the City of Newark. The strike mentioned was settled the day before the second load was to be delivered. Notwithstanding that fact, however, defendants refused delivery.
We think the judgment should be affirmed. Inasmuch as the plaintiffs accepted and paid for the first load of fowl, the oral contract does not violate the Statute of Frauds. N.J.S.A.
The judgment is affirmed, with costs. *478