
    WILLIAM J. SMITH, PLAINTIFF-APPELLEE, v. ALOIS SPAETH, JR., DEFENDANT-APPELLANT.
    Submitted January 6, 1925
    Decided April 13, 1925.
    Contracts — Undertakers—Claim Against Brother of Deceased— Evidence of Existence of Contract — Judgment in District Court — Payment During Suit of a Part of the Claim by the Estate of the Deceased — Such Payment Must be Deducted From $500, the Limit of Claims in District Courts, Not From $585.10, the Actual Amount of Claims.
    On appeal from the Orange District Court.
    Before Justices Tbenchabd, Mtntijbn and Lloyd.
    Eor the appellee, William Tyaclce.
    
    Eor the appellant, Ilaines & Glumalis.
    
   Pet? Cubiam.

Tins is an appeal from a judgment in the Orange District Court in favor of the plaintiff hi the sum of $398.37. The plaintiff was an undertaker, and, according to- his evidence, was engaged by the defendant to furnish the services and supplies for the funeral of the defendant’s brother. A book account of the claim was admitted in evidence and admitted to be correct as to amount. The book account purported to be a charge against the estate of the deceased brother. The plaintiff, however, testified that he made out an estimate of the cost of the funeral an'd that the defendant had orally promised to- pay for the same, which he had refused to do. The evidence- of the defendant tended to show that there was no contract between the plaintiff and the defendant, but that the defendant was acting for his sister-in-law, the widow of the deceased brother. It was also- conclusively shown that the plaintiff had, after the present suit was begun, received a dividend of $187.73 from the- estate of the. deceased brother on account of the claim. ,

The appellant contends that on the whole of the proofs credit was given to the dead man’s estate and not to the defendant, and that, consequently, the judge should have rendered a verdict for the defendant, and that, in any event, the dividend of $187.73 should have been credited on the $500 claimed in this action instead of on the- original claim. While the estate of the deceased brother might be liable for the funeral expenses^ this did not preclude the plaintiff*from making an original agreement with the defendant respecting them, and there- is evidence- to show that he did. The appellant also contends under the case of Weill v. Jacoby, 72 N. J. L. 273, that the suit, being on a book account, does not sufficiently apprise the defendant of a claim under a special contract. This, perhaps, would be true under the state of demand originally filed. It was followed, however, by an amended state of demand, in which the claim is for services rendered to the defendant by the plaintiff at the defendant’s request, and this objection is thereby overcome-. We think, however, that the objection that the credit was- improperly applied is well founded/ In' order to bring the original claim of $585.10 within the jurisdiction of the District Court, the plaintiff waived all above the sum of $500. Section 33 of the District Court act (Q. P. 1964) gives the plaintiff the right to waive- any e-xcess, but also declares that a “recovery shall be a bar to the recovery of the residue of such debt, balance or other matter in dispute in any court whatsoever.”- When plaintiff began the present action his claim, by reason of the waiver, stood for $500 and no more. When, shortly thereafter1, he received payment through the Orphans Court of $187.73, it necessarily was a credit on his then existing claim.

If the plaintiff will waive the excess over $313.27 the judgment will be affirmed in that amount, without costs, on this appeal; otherwise it will be reversed, and a new trial awarded as to damages alone. Philbrick v. Mundy, 93 N. J. L. 43; approved and followed, E. Clemens Horst Co. v. Peter Breidt City Brewery, 94 Id. 230.  