89 N. J. L. Stuart v. Burlington Co. Farmers' Exchange.

was claimed by him to have been about $1,200. The trial resulted in a verdict in favor of the plaintiff, and from the judgment entered thereon the defendant appeals.

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The only ground of appeal argued before us is an alleged error in the instruction to the jury relating to the measure of damages. The court first charged that if there was a breach of warranty as to the quality of the fertilizer, and the seller knew the use to which it was to be put, he was answerable to the purchaser for the difference between the value of the crop produced by the fertilizer which was actually delivered, and the value of the crop that would have resulted in all reasonable probability had the fertilizer corresponded to the warranty. No criticism is made upon this part of the charge, but the court then proceeded to say that the plaintiff sought to recover, not only this difference in value, but also the money paid by him for the fertilizer, and then added "He cannot recover back the $280 which he paid. That is not the law. The law is that his measure of damages is the difference between the price which he paid for the fertilizer and what it was worth and the worth of it you will have to determine from the evidence." The effect of this added instruction was to permit a recovery of double damages. If the fertilizer had been what it was warranted to be, the crop produced would have been, according to the plaintiff's claim, $1,200 more valuable than it turned out to be; and the plaintiff was allowed to recover this $1,200 if the jury thought the difference was proved. Such a recovery would have made him exactly whole. That is, he would then have had in his pocket just what he would have had provided the fertilizer had strictly complied with the warranty. But when he was permitted, after being made whole, to recover also the difference between the contract price of the warranted fertilizer, and the value of that which was actually furnished, he was, in effect, allowed a discount upon the price of a fertilizer which, after the allowance of the compensation for the diminution of the crop was determined and allowed to him, was worth exactly what the warranted fertilizer was.

Von Novelly v. Carpenter.

89 N. J. L.

This instruction was harmful error, and, as it is impossible to determine to what extent it entered into the making up of the verdict, the judgment under review must be reversed.

EGON VON NOVELLY ET AL. v. JOHN H. CARPENTER ET AL.

Submitted December 2, 1915-Decided June 8, 1916.

1. Under section 215 of the Practice act (Comp. Stat., p. 4119), only fundamental questions may be certified to the Supreme Court; that is, questions the answers to which will enable the Circuit Court to render judgment for the one party or the other without any further proceedings in the cause on its part.

2. The rule or order authorized by section 252 of the Practice act (Comp. Stat., p. 4128), when made, transfers such matters as come within its purview to the Supreme Court for its consideration and determination.

On case certified from the Hudson Circuit.

Before GUMMERE, CHIEF JUSTICE, and Justices SWAYZE and BERGEN.

For the plaintiffs, Roe, Runyon & Autenreith.

For the defendants, Vredenburgh, Wall & Carey.

The opinion of the court was delivered by

GUMMERE, CHIEF JUSTICE. The present action was brought to recover damages for breach of a contract. The complaint contains four counts. The defendants, contending that the second, third and fourth counts of the complaint to be bad, moved before the Circuit Court to strike them out. That court, conceiving that certain matters involved in the determination of the motion presented questions of doubt and difficulty, certified them to this court for its advisory opinion thereon.

89 N. J. L.

Von Novelly v. Carpenter.

Section 215 of our Practice act (Comp. Stat., p. 4119), which authorizes the Circuit Court to certify questions of doubt or difficulty, to be argued at the bar of the Supreme Court, provides that, after the Supreme Court has heard the same and certified its opinion thereon to the Circuit Court, the latter court "shall render judgment therein in conformity to such opinion." In McDonald v. Central Railroad Co., 88 N. J. L. 11, we held that under this statutory provision only fundamental questions might be certified-that is, questions which are dispositive of the litigation and the answers to which will enable the Circuit Court to render judgment for the one party or the other without any further proceedings in the cause on its part. The questions certified in the present case are not of the character indicated. They only relate to the validity of certain counts in the complaint; and, even if those counts should be held to be bad, no final judg ment can be entered in the cause either for or against the plaintiffs. The other counts of the complaint remain to be answered by the defendants, and on the issues thus formulated a trial must be had.

The Circuit Court judge has stated in the record sent to us that the questions were certified pursuant to section 252 of the Practice act (Comp. Stat., p. 4128), which provides that "Any justice of the Supreme Court or judge of the Circuit Court, to whom application may be made for any rule or order by virtue of this act, may refer the same to the Supreme Court and make such order for the taking of testimony and for stay of proceedings as may be equitable." This section, however, does not contemplate the rendition of advice by the Supreme Court to a judge of the Circuit Court for his guidance in acting upon such application; but is intended to transfer such matters as come within its purview to the Supreme Court for its consideration and determination, and consequently affords no basis for the procedure adopted by the Circuit Court in the present case.

The certified case will be dismissed.

IN THE MATTER OF THE APPEAL OF WILLIAM P. VERDON FROM AN ORDER ADJUDGING HIM GUILTY OF CONTEMPT OF THE HUDSON COUNTY COURT OF QUARTER SESSIONS.

Argued April 3, 1916-Decided May 20, 1916.

1. The power of the Court of Quarter Sessions to punish contempts of court is derived wholly from the common law, which has neither been altered nor enlarged by statute in this state. 2. In a summary proceeding for contempt there can be no trial and hence there can be no witnesses against the accused nor a contradiction of his oath by that of others. The proper procedure in such cases is to bring the defendant into court to answer such interrogatories as shall there be exhibited against him. If his answers to the interrogatories show that no contempt has been committed, the party is entitled to his discharge; but if the contempt be admitted, the court shall then proceed to pronounce such judgment as the circumstances may require.

3. The procedure, as laid down by the common law, for the punishment of contempts of court is a part of the substantive law and not a rule of practice.

4. Courts of law can no more at their will adopt the chancery proceeding respecting matters of contempt than they can in any other matters respecting which the two courts radically differ.

On appeal from a judgment of contempt of court.

This is an appeal under the provisions of the act of April. 17th, 1884 (2 Comp. Stat., p. 1736), providing for the review by this court of summary convictions for contempt.

The appellant, William P. Verdon, was by the Hudson County Court of Quarter Sessions adjudged guilty of a contempt of that court by reason of certain newspaper publications and was sentenced to pay a fine of $250, and to serve a term of thirty days in the county jail.

The proceeding, which was instituted by the Court of Quarter Sessions, resulted in the issuance by it of a rule to show cause requiring William P. Verdon and others to show cause why they should not be adjudged guilty as of a contempt of the Court of Quarter Sessions of Hudson County.

At the hearing upon the return of this rule Verdon appeared by counsel, who moved the court to proceed against his client by the filing of interrogatories and not by the taking of testimony to try the question of contempt, citing the case of In re Gonzales, not at that time officially reported. The motion of Verdon's counsel was overruled and witnesses were called and examined by the assistant prosecutor over the objection of counsel for Verdon, who stated that his client stood mute as to any participation in such trial, excepting to say, "that we now offer to purge ourselves or to attempt to purge ourselves of contempt of court upon the exhibition to us of written interrogatories in accordance with the course of the common law," which offer was renewed when Verdon was called to the bar of the court for judgment. At no time were interrogatories exhibited to Verdon whose conviction of contempt rested wholly upon the testimony of witnesses. The present appeal challenges the legality of the conviction thus had.

Before Justices GARRISON, TRENCHARD and BLACK.

For the appellant, Harlan Besson and Merritt Lane.

For the state, George T. Vickers.

The opinion of the court was delivered by

GARRISON, J. The power of the Court of Quarter Sessions to punish contempts of court is derived wholly from the common law, which has been neither altered nor enlarged by statute in this state.

What the common law of England was at the time at which we derived it from the parent country is thus stated by Blackstone, who wrote at about that period: "If the contempt be committed in the face of the court the offender may be instantly apprehended and imprisoned at the discretion of the judges without any further proof or examination. But in matters that arise at a distance and of which the court cannot have so perfect a knowledge unless by the confession of the party VOL. LXXXIX.

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