Defendant moves for summary judgment against plaintiffs on the pleadings filed herein, plus certain proof by affidavit and otherwise, including the State of the Case in previous litigation between the same parties, which resulted in a judgment for defendant in the highest court of this State. [ Stone v. Steinen , 22 N.J. Misc. 353; affirmed, 133 N.J.L. 16; affirmed, 133 N.J.L. 593 (E. & A.).] The basis of the motion is, in brief, that the services, for which plaintiffs seek recovery, were the same as those on which they were denied recovery in the above litigation, and that such litigation is res judicata , barring recovery in the present suit.
This requires a comparison of the issues in the first suit and in the second, or present, suit. In the first place, as to the services themselves, plaintiffs' counsel frankly admitted on the argument that "plaintiffs never did anything of substance after starting the first suit." That the services in fact performed by plaintiff Alexander H. Stone -- as counted on -- were of identic character in both the first and second suits, further appears from a comparison of the recital of such services as set forth in the State of the Case [pp. 70-71] in the first suit, and in paragraph four of count one, as repeated in every other count, in the second suit.
As to the issues in the first suit, plaintiffs sought recovery on two written contracts between the parties, both dated December 31, 1942, and effective as of July 1, 1941, under
which plaintiffs claimed to have performed services for defendant in obtaining war contracts for it from the United States Navy during World War II. The suit was for two installments of salary, allegedly due plaintiffs on September 11, 1943, and September 18, 1943, the complaint having been filed September 21, 1943. The prime issue involved in the first suit was the legality of the contract and of the services performed thereunder. As to this, the trial court, sitting without a jury, held that "the contract sued on and the consideration on which it is based is void as against public policy." This decision was affirmed in turn both by the previous New Jersey Supreme Court and by the Court of Errors and Appeals. Our highest court alludes to the fact that the contract sued on was a "substitute" and "a mere blind" for a previous agreement "calling for a contingent fee." It recites the fact that "plaintiffs maintained no office in Washington save the residence where Alexander H. Stone lived;" that "there was no consecutive clerical force and no usual office equipment;" that Stone "had no technical training, and the work done was merely contact work with representatives of the Navy;" that "the provision for the continuance of the contract * * * seems indeed curious." This, with other facts, resulted in the finding that the contract, as sued on in both the first suit and in the fourth count of the second suit -- was "a mere blind." As a consequence, the court concluded that, "The employment had an inherent tendency to promote a corrupt means to accomplish the end." As a consequence, our highest court affirmed the Supreme Court, which in turn affirmed the trial court's holding that "the contract sued on and the consideration on which it was based is void as against public policy." Obviously the consideration for defendant to pay plaintiffs under the contract sued on was the services performed by plaintiffs under the above circumstances.
Bear in mind, the first case does not hold that it is the mere contingent nature of plaintiffs' pay which renders the contract and the "consideration" for such payment illegal. The trial court expressly alludes to the fact that contingent
payments may under certain circumstances be legal. Nor is it the physical acts per se performed by plaintiffs with the Navy which the first suit finds to be illegal. Had these same acts been performed by "a bona fide established commercial or sales agency," and not from a mere house, instead of an office, without any regular clerical force, by a person of no technical training, paid in fact on a contingency, the conclusion might well have been otherwise. In short, it was the performance of these acts by plaintiffs, under the suspicious circumstances under which plaintiffs did them, which made them illegal as against public policy, because of their inherent tendency to "corrupt public officials or to swerve them from the conscientious and impartial discharge of their duties." [ McCabe v. Kupper , 4 N.J. Super. 78.] Indeed, as the McCabe case says, it is immaterial "that there was no proof that the parties actually contemplated or engaged in anything corrupt or immoral." The essence of the adjudication in the first suit was the inherently illegal character of both the contract and the services performed by plaintiffs under such circumstances.
In the second, the present suit, obviously framed to obtain a recovery for plaintiffs for the same kind of services performed by them as counted on in the first suit, the complaint is in four counts. In count one, on quantum meruit , the services for which recovery is sought are set forth in paragraph four. As previously shown, the character of the services performed was identic as involved in both suits. Indeed, count one of the present suit covers the same period of services as does suit one, plus services rendered earlier, from the beginning of the contract, i.e. , July 1, 1941. If the services rendered in this previous period have been paid for, the present complaint therefor is of course sham.
Thus, except as to these earlier services, of which more later, the sole question as to count one is whether, since it is on quantum meruit , instead of being on contract, though between the same parties, for the same services, and under the same conditions, the doctrine of res judicata is applicable.
As to count two of the present suit, this simply asks for discovery, and other similar auxiliary relief, in aid of count one. It ...