Kaplan v. Epstein

Supreme Court of New Jersey

Decided January 13, 1939

Supreme Court of New Jersey · decided 1939-01-13

Decided 1939-01-13

Per Curiam.

¶1 The judgment under review herein should be affirmed, for the reasons set forth in the opinion delivered per curiam by the Supreme Court.

¶2 For affirmance — -The Chancellor, Chief Justice, Case, Bodine, Donges, Heher, Porter, Hetfield, Dear, Wells, WolfsKeil, Rafferty, Walker, JJ. 13.

¶3 For reversal — None.

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Case posture

Posture: On appeal from the Supreme Court, in which the following per curiam was filed: This is defendant's appeal from a District Court judgment of $150 damages by reason of being unlawfully prevented by defendant from completing a contract to paint and decorate four of defendant's houses. Trial was had before the court without a jury, and without a stenographer, and the parties being unable to agree on a state of the case for appeal, it was settled by the trial judge. There was a conflict in the evidence as to whether plaintiff had abandoned his contract, or had been shut out by the defendant when it was partially performed. The trial judge took the latter view and as there was evidence to support it, it stands as a finding of fact, and is of course controlling here on well settled principles. This disposes of most of the multifarious `specifications of determinations' corresponding to assignments of error. It may be well to note, however, that many of them are predicated on the theory that plaintiff is suing for the balance of a contract price and is consequently obliged to show performance of contractual conditions precedent; but that theory is inapplicable, because the claim is for damages because of being wrongfully prevented from performing, as in Kehoe v. Rutherford, 56 N.J.L. 23 , and Wilson v. Borden, 68 Id. 630 . Of the four houses covered by the contract, plaintiff had, according to his testimony, substantially completed two and had been paid half the total contract price. He testified as to the cost of painting the other two, and that if he had been allowed to go on, would have made a profit of $200 on each house. The trial court seems to have discounted these figures somewhat, perhaps because something remained to be done on the first two houses; and awarded $150, as we have said. It is argued that the rule in Wilson v. Borden applies, and that there was not sufficient evidence to enable the court to apply it. But there was no need to do so, as the claim was only for profit that would have resulted from completion, and not for work actually done. We find no error, and the judgment is therefore affirmed.

Source: CourtListener

Court

Supreme Court of New Jersey

Parallel citations

3 A.2d 573