On appeal from a judgment of the District Court of the Second Judicial District of the County of Essex.
For the appellant, David L. Schwartz (Herbert A. Kuvin, of counsel).
For the respondent, Samuel M. Goodman (Bernard Freedman, of counsel).
Before Justices Trenchard, Case and Heher.
The opinion of the court was delivered by
HEHER, J. On April 19th, 1938, the plaintiff herein instituted an action against the defendant corporation in the Essex Circuit Court for the recovery of salary and a fixed weekly allowance for expenses alleged to have accrued under an express contract of employment, and an unpaid declared dividend on certain shares of the defendant corporation's common stock held by plaintiff.
The complaint was in four counts: (1) The first pleaded a contract made on November 15th, 1935, whereby plaintiff entered into defendant's employ as general manager and salesman in consideration of the payment of a weekly salary of $40 and, in addition, $5 per week "in lieu of all general expenses which the plaintiff might incur in the further performance of his duties" as such, and non-payment of the
weekly expense allowance for ninety-two weeks, the period of plaintiff's service, or the total sum of $460; (2) the second averred defendant's agreement on May 1st, 1936, "to increase" plaintiff's "salary from $40 to $50 per week," which increase plaintiff did not withdraw as earned, but permitted to accumulate, and a total indebtedness therefor of $350; (3) the third asserted a claim of $21.75 for an unpaid declared dividend on defendant's common stock; and (4) the last merely declared plaintiff's willingness to set off $66.02, acknowledged to be due defendant from plaintiff.
Defendant interposed a general denial of the indebtedness so alleged, and counter-claimed for moneys paid on plaintiff's account in the aggregate sum of $137.52. The answer to the counter-claim denied this claim in part.
The issue was tried before a jury. On defendant's motion, a nonsuit was "granted as to the first count;" and the jury returned a verdict for plaintiff in the sum of $305.73, and "no cause for action" on the counter-claim. The trial judge directed that this verdict "be molded so that the same be a verdict of $350 in favor of the plaintiff * * * and a verdict of $44.27 in favor of the defendant * * * on the counter-claim." Judgment was entered accordingly, and there was no appeal. The judgment was fully satisfied on December 24th, 1938.
Thereafter, on February 8th, 1939, the instant action was commenced upon the same cause of action pleaded in the first count of the complaint filed in the Circuit Court action; and the District Court judge, upon the admission in evidence of the record of that cause, dismissed the action upon the ground that "the right of action set forth in the state of demand in the District Court had been merged in the judgment for plaintiff entered in the Essex County Circuit Court and that the plaintiff had no further right of action."
Plaintiff now invokes the doctrine that a judgment of nonsuit is not a bar to a subsequent suit upon the same cause of action -- citing Beckett v. Stone, 60 N.J.L. 23; Carey v. Hejke, 119 Id. 594; The Automobile Insurance Co. v. Conway, 109 N.J. Eq. 628; Federal Schools, Inc., v. ...