On return of a rule to show cause staying proceedings.
For the plaintiff, Gross & Gross.
For the defendant, McCarter & English.
Before Justices Parker and Perskie.
The opinion of the court was delivered by
PERSKIE, J. This matter comes before the court on the return of a rule to show cause why the above entitled cause, now pending in this court (Hudson county) and awaiting trial, should not be stayed. The record submitted on this rule discloses substantially the following facts: On January 6th, 1932, plaintiff instituted suit against the defendant for the breach of an alleged contract, under date of January 28th, 1930, which the plaintiff contends he had with the defendant for the sale to him, by the defendant, of certain machinery and equipment. On February 29th, 1932, defendant made application for a bill of particulars. This was allowed and the particulars were supplied. On further application by the defendant additional particulars were furnished it. Thereafter defendant filed a general answer denying liability and particularly pleaded res adjudicata, rescission and abrogation by mutual consent. Plaintiff filed his reply to the answer and noticed the cause for trial. About thirteen and one-half months after the institution of this suit, to wit, February 25th, 1933, while this cause was awaiting trial as aforesaid, defendant obtained this rule by virtue of a petition filed by it wherein it in main set forth that in 1930 plaintiff had instituted a suit against the same defendant for the same cause, which suit resulted in a judgment in the sum of $30,084.65 in favor of the plaintiff, and that after the affirmance of the judgment by the Court of Errors and Appeals it was fully paid and satisfied. The plaintiff, however, contends that the judgment and satisfaction thereof as aforesaid, was not for the same cause set forth in the instant suit. That the instant case is founded on an alleged breach by the defendant of a contract with the plaintiff under date of January 28th, 1930, whereas the former suit was for the breach of a contract under date of February 21st, 1930. That the machinery and equipment involved in the former suit was
different from those involved in the instant suit. Notwithstanding the claim made by the defendant that the present suit is vexatious and an abuse of the process of the court (Dengler v. Hays, 63 N.J.L. 14), nevertheless counsel for the defendant frankly admit or concede that at least three of the machines involved in the instant case were not involved in the former suit. And this is not all. Campbell S. Lennie, witness of defendant, and the person in charge of this entire transaction between the plaintiff and defendant testified as follows on cross-examination:
"Q. And on your January 28th offer, or agreement, or letter, it was likewise fifty per cent. of the machinery which did not constitute part of the February 24th agreement?
Mr. McCarter -- "I object to this as argumentative and calling for testimony as to the contents of documents which themselves are in evidence.
"Q. Here is what I am trying to point out: Before when I was discussing the February 24th agreement, I pointed out that there is $10,900 worth of machinery included in that contract that were not mentioned in the January 28th contract? A. Yes.
"Q. And I said that that constituted fifty per cent. of the purchase price under the February 24th agreement; isn't that so? A. Apparently, yes.
"Q. And that that machinery did not constitute any part of the agreement under date of January 28th, 1930; is ...