On appeal from the Monmouth County Circuit Court.
For the plaintiff-appellant, Edward W. Currie.
For the defendant-respondent, Bernard H. Weiser.
Before Brogan, Chief Justice, and Justices Parker and Oliphant.
The opinion of the court was delivered by
OLIPHANT, J. This is an appeal from a judgment entered in the Monmouth County Circuit Court where, on the trial
of the issue, plaintiff was nonsuited on his opening. This we conclude was error.
The complaint in its first count set forth that plaintiff was the administrator of the estate of Laura Becker, his mother; that she had purchased during her lifetime three insurance policies and had designated therein the defendant, her niece, as beneficiary; that in consideration of such appointment and the payment to her of fifty dollars ($50) for her services from the proceeds of one of the policies the defendant agreed to use the remaining proceeds to pay the funeral expenses of decedent and erect a suitable monument over her grave; that demand for performance of the agreement was made and refused. The second count sought to recover all the proceeds of the policies upon the ground of unjust enrichment of the defendant in keeping the moneys under the circumstances. The answer denies the agreement and reserves the right to move to strike the complaint at, before or during the trial, on the ground that same is insufficient in law and in fact and sets forth no cause of action against defendant. Defendant also pleaded res adjudicata; alleged that there was no privity of contract between plaintiff and defendant; denies being indebted to plaintiff's decedent; alleges that the parties liable for the funeral expenses are the plaintiff and decedent's husband, and that defendant did not order the funeral but that plaintiff did.
Two grounds were urged by counsel for the defendant on the argument for the nonsuit, first, that all the testimony that would be offered by the plaintiff would come within section 4 of the Evidence Act (now R.S. 2:97-2) and secondly, that the alleged agreement was within the statute of frauds, R.S. 25:1-5, it not being in writing and it being a promise to answer for the debt of another, and was not to be performed within one year from the making thereof. Additional grounds in support of the nonsuit are now urged but they are not available here, State v. Snell, 96 N.J.L. 299, unless in support of the proposition that though the reasons given by the court below for its action were erroneous, if, in fact, that action was proper on other grounds appearing in
the case it will not be disturbed, Procacci v. U.S. Fire Insurance Co., 118 Id. 423, which is not the situation presented by the record before us.
The argument for the nonsuit was not predicated upon the fact that the opening did not state a cause of action or that it set forth a cause not contemplated by the complaint. If it had plaintiff would have been on notice and could have asked leave to reopen. Henry v. Haussling, 114 N.J.L. 222. As a matter of fact counsel for the plaintiff did in his opening state that he would show the agreement allegedly made between the deceased and the defendant. Further, upon a motion for a nonsuit addressed to the opening and the complaint the defendant admits everything well pleaded and every reasonable inference therefrom. Cooper v. Singer, 118 Id. 200. The case of Carey v. Gray, 98 Id. 217, relied upon by the defendant is not pertinent. There the court made a restatement of the facts related by counsel in ...