On appeal from the Supreme Court, Essex county.
For the plaintiff-respondent, Milton M. Unger.
For the defendant-appellant, Williams & Leonard.
The opinion of the court was delivered by
PERSKIE, J. Appellant seeks to review an order and rule, each dated November 19th, 1932, made by the late Chief Justice Gummere during the progress of the cause. The order denied appellant's motion to dismiss the respondent's cause
of action, summons in which was tested September 24th, 1932; and the rule permitted the respondent to consolidate its two causes of action against the appellant. The rule of consolidation provided that the allegations of the first cause should be known as "First Count" of the consolidated action and the allegations of the second cause should be known as "Second Count" thereof. Appellant also seeks to review the final judgment entered in favor of the respondent, after trial before Circuit Court Judge Smith, sitting without a jury.
The trial disclosed the following facts: On September 23d, 1930, Maggi & Schoonover entered into a contract with the New Jersey state highway commission for the furnishing of labor and materials to complete the undertaking described in the contract as "Passaic river bridge and approaches, Paterson to East Paterson, New Jersey, in section 7 of route 4 of the state highway system of New Jersey." Pursuant to chapter 75 (Pamph. L. 1918, p. 203), the contractor furnished a bond with the appellant as surety thereon. It is in the usual statutory form. The respondent sold Maggi & Schoonover structural steel, which was actually incorporated in the undertaking contemplated by the contract, and upon which the admitted balance of $7,000 was due.
On January 11th, 1932, after the engineer in charge had reported that the undertaking was completed, the state highway commission adopted a resolution whereby "it approved acceptance of the contract with Maggi & Schoonover * * * and authorized final payment therein when in order." Respondent informed of that resolution, served a statement of its claim on the surety, on March 26th, 1932, and on April 12th, 1932, instituted suit. On February 2d, 1932, the state highway commission passed a resolution rescinding its action of January 11th, 1932, and instead thereof approved "of the acceptance of the completed work on this contract of the making of semi-final payment thereof less than one hundred and twenty-five per cent. of the value of the uncompleted work which cannot be performed until spring." It appeared that some seeding, &c., that had not been done and could not be done until spring, necessitated the foregoing action on the
part of the state highway commission. Thereafter, on July 5th, 1932, the state highway commission again adopted a resolution and "approved of final acceptance of the completed work * * * and authorized the making of final payment thereon when the necessary formalities have been observed." A dilemma faced the respondent. It was in a quandary. What was the actual date of acceptance? Unwilling, and properly so, to subject itself to the consequences of the uncertainty thus created, through no act or fault of its own, its counsel served the surety a second statement of its claim on August 2d, 1932, and brought a second suit against the appellant on September 24th, 1932. Appellant filed an affidavit of merits to this second suit and thereafter noticed respondent on a motion to dismiss the second cause on the ground of the pendency of the first cause of action -- for the same cause and between the same parties. Respondent countered with a motion for a consolidation of the two suits with the results already indicated. Was the consolidation of the two suits erroneous? We think not.
As we understand the contention of the appellant, it is that there is but a single right upon which respondent could predicate its action, and having sued under appellant's bond, in the first suit, it could not, during the pendency of that suit, bring another action upon the same bond, based on the same subject. Appellant summarizes its contention on this point as follows:
"If a prior action on the same bond for the same claim, as between the same parties, is not a bar to the second action, then by the same token a litigant in doubt of the date of acceptance might well bring fifty actions in the trembling hope that one of them might contain the proper ...