FOONT-FREEDENFELD CORP. v. ELECTRO-PROTECTIVE CORP., 64 N.J. 197 (1974)

314 A.2d 68

FOONT-FREEDENFELD CORPORATION, PLAINTIFF-APPELLANT, v. ELECTRO-PROTECTIVE CORPORATION, DEFENDANT-RESPONDENT.

Supreme Court of New Jersey.Argued December 19, 1973 —
Decided January 22, 1974.

On appeal from Superior Court, Appellate Division.

Mr. Theodore W. Geiser argued the cause for appellant (Messrs. Hughes, McElroy, Connell, Foley Geiser, attorneys).

Mr. Sidney Krieger argued the cause for respondent.

PER CURIAM.

On this appeal, plaintiff has expressly disclaimed any contention that the limitations of liability clause in question is arbitrary and unconscionable and should be declared unenforceable as against public policy. Rather, the argument is made that the clause (1) is invalid since it is unrelated to actual damages and therefore is in the nature of a penalty provision; and, (2) in any event, was intended to apply only to a situation where defendant breached its annual service undertaking (as distinguished from design and installation of the system) and plaintiff found it necessary to obtain the service elsewhere at a higher cost.

Also, in addition to defendant’s allegedly admitted liability for breach of contract, plaintiff asserts a claim based on defendant’s “innocent misrepresentation of material fact,” on which plaintiff asserts it relied, with resultant damage proximately related to such misrepresentation.

We have considered all of plaintiff’s contentions. The judgment of the Appellate Division is affirmed for substantially the reasons expressed in its per curiam opinion reported at 126 N.J. Super. 254 (1973).

Affirmed.

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For affirmance — Justices JACOBS, HALL, SULLIVAN, PASHMAN and CLIFFORD, and Judge COLLESTER — 6.

For reversal — None.

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