This is a motion to dismiss the complaint on the following grounds: (1) the plaintiff is barred, having elected his remedy in a prior suit in the Superior Court of New Jersey, Chancery Division, Camden County, entitled J. Raymond Murphy, plaintiff, v. Gloucester Spinning Corporation of New Jersey, defendant; (2) the action herein, insofar as it seeks rescission for fraud, was not timely brought; (3) the contract involved herein provides for arbitration and plaintiff is therefore relegated, in the event he has a cause of action, to submit to arbitration.
The amended complaint herein sets up plaintiff's cause of action in 12 separate and distinct counts. Counts 1 to 6 inclusive seek recovery for money advanced by plaintiff to defendant Gloucester Spinning Corporation. Counts 7, 8, 9 and 10 seek rescission of the contract entered into between the plaintiff and defendants Stanley J. Morris, Sidney Starr and Gloucester Spinning Corporation upon the alleged fraudulent representations of the said Stanley J. Morris and Sidney Starr in inducing the plaintiff to enter into said contract, and recovery from Stanley J. Morris and Sidney Starr of the consideration paid to them for stock in said Gloucester Spinning Corporation. The 11th and 12th counts seek relief against certain actions of the said Stanley J. Morris and
Sidney Starr in connection with the conduct and operation of the Gloucester Spinning Corporation.
On January 24, 1949, plaintiff commenced an action in the Superior Court of New Jersey, Chancery Division, against Gloucester Spinning Corporation, Docket No. C-664-48, in which he alleged that he was a stockholder in the named defendant corporation and a creditor by reason of having advanced certain sums of money to the defendant corporation, and that the said defendant corporation was insolvent. This action sought the appointment of a receiver for the said Gloucester Spinning Corporation. In this action plaintiff was unsuccessful. Thereafter, the present action was commenced.
Although the complaint now filed is framed with different phraseology, the relief sought in counts 1 to 6 inclusive and counts 11 and 12 are more or less identical with the relief sought in the prior suit.
Defendants argue that since in the prior suit the plaintiff had approbated the contract under which he obtained his stock from Stanley J. Morris and Sidney Starr, he cannot now be heard to reprobate the contract on the ground of fraud. The question, therefore, with which we are concerned is whether the plaintiff had elected his remedy in the prior suit.
An election of remedies may generally be defined as choosing between two or more different and co-existing modes of procedure and relief allowed by law on the same state of facts. 18 Am. Jur., p. 129; 28 C.J. Sec., p. 1057; 20 C.J., p. 2.
The essential conditions or elements of election of remedies are (1) the existence of two or more remedies; (2) the inconsistency between such remedies, and (3) a choice of one of them. Levy v. Massachusetts Accident Co. , 127 N.J. Eq. 49 (E. & A. 1939); Tremarco v. Tremarco , 117 N.J. Eq. 50 (E. & A. 1934); Adams v. Camden Safe Deposit & Trust Co. , 121 N.J.L. 389 (Sup. Ct. 1938).
The doctrine is applicable where an aggrieved party
has two remedies by which he may enforce inconsistent rights growing out of ...