Plaintiffs move to amend their complaint by adding thereto new counts 2 and 3. This motion is made subsequent to defendant's filing of answer and counterclaim to the original complaint and subsequent to discovery proceedings, but prior to pretrial. Defendant resists this motion, claiming that the proposed new counts are inconsistent with the original complaint, and that plaintiff by taking its original position has elected its remedy and is now prevented from changing its position.
The question thus is, when must a party finally elect between inconsistent causes of action and, consequently, inconsistent
claims for relief? As to this the state and federal courts, before the new rules, were not in accord either in New Jersey or throughout the country. (8 Am. Jur., Election of Remedies, secs. 16, 18, 19).
The new rules of civil practice of the courts of this State, with their broader provisions than formerly, both as to pleadings and discovery thereunder, provide for a subsequent pretrial conference as well, unknown under the old practice. These rules pertinently provide: "Relief in the alternative or of several different types may be demanded." (Rule 3:8-1.) "A party may set forth two or more statements of a claim or defense alternatively or hypothetically, either in one count or defense or in separate counts or defenses. * * * A party may also state as many separate claims or defenses as he has regardless of consistency and whether based on legal or on equitable grounds or on both * * *." (Rule 3:8-5(b)). "* * * leave (to amend pleadings) shall be freely given when justice so requires * * *." (Rule 3:15-1.) At the pretrial conference, subsequent to pleadings and discovery, but prior to the determination of the merits of the controversy, the attorneys are required to "state and simplify the factual and the legal issues to be litigated and to amend the pleadings accordingly." In addition to other matters, "The court shall (at pretrial) make an order * * * limiting the issues for trial * * *. Such order * * * with the pleadings as ordered to be amended controls the subsequent course of action, unless modified at the trial to prevent manifest injustice." (Rule 3:16.)
It is thus apparent that under the new practice, as contradistinguished from the old, not only is a party permitted to state his claims, in a simple yet liberal way, but if such statement sets forth a legal claim, it is immaterial that such claims are inconsistent. Of course, these pleadings may be promptly dealt with if sham or otherwise improper or ineffective. (Rules 3:11, 3:12-3, 3:12-6, 3:56.) But if proper, the pleadings, and the bona fide issues raised thereby both of fact and of law, are subjected twice thereafter to the
scrutiny of the court, first at pretrial and later at the trial itself, all to the end that the trial may be confined to the actual controversy on the merits. This added opportunity under the new practice of pretrial, to sift the wheat from the chaff, of itself constitutes a reason why the new rules give greater liberality to a party in asserting his claims during the pleading period, and why such party should not be unduly restricted in asserting inconsistent claims, at least before he has had full opportunity to know exactly what facts his opponent may face him with.
Such being the apparent spirit and letter of the new rules, we turn to a consideration of the original complaint in the case at bar and the proposed two new counts therein. The original complaint alleges that defendant engaged plaintiff as a subcontractor to do certain excavation and other work, under a written contract. That thereafter this written agreement was modified to call for a payment of $2,000 to plaintiff by defendant; that this sum was due and owing, had been demanded, but had not been paid. Copies of the original agreement and the alleged modification were attached to the complaint itself.
Plaintiff asks to amend this complaint by entitling the original complaint "first count," and by adding thereto a second count and a third count. The proposed second count alleges that, by mutual mistake, there was an ambiguity in the modification, in that it alluded to plaintiffs doing "grading," though the intent was to state "rough grading," not "finished grading." The pleading continues by alleging that "In the alternative, if defendant was not mistaken as aforesaid, then the use of the word 'grading' was a deliberate device, utilized by defendant with the intent to deceive plaintiffs, so as to include surreptitiously, by reference to the plans and specifications, all types of 'grading.'" Plaintiff then asks for reformation of the modification, to call for "rough grading," and judgment for $2,000.
The proposed third count is based upon the original agreement, asks judgment for a balance of ...