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Cheel Construction Co. v. Lubben

Decided: March 23, 1954.

CHEEL CONSTRUCTION CO., INC., A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DAVID G. LUBBEN, ALSO KNOWN AS DAVID LUBBEN, DEFENDANT-APPELLANT



Eastwood, Jayne and Clapp. The opinion of the court was delivered by Jayne, J.A.D.

Jayne

On December 13, 1952 a judgment was entered in the Superior Court, Law Division, in favor of the plaintiff and against each of the defendants, Saddle River Farms, Inc., and David G. Lubben, in the sum of $17,114.47. The judgment eventuated from a trial conducted on December 4, 1952.

On May 28, 1953 substituted counsel for the defendant Lubben filed a notice of an application to be made on June 5, 1953 pursuant to R.R. 4:62-2 for an order vacating the judgment against the defendant Lubben. The application was denied and the present appeal is confined to the propriety of the denial.

The court rule applicable to such motions and the essentials necessary to its successful invocation have been recently discussed in Shammas v. Shammas , 9 N.J. 321, 326 (1952); Fischer v. Fischer , 13 N.J. 162, 164 (1953); Whiteman Food Prod. Co. v. G. Arrigoni & C., etc. , 27 N.J. Super. 359, 367 (App. Div. 1953); Schulwitz v. Shuster , 27 N.J. Super. 554, 558 (App. Div. 1953).

We have examined the affidavits of the defendant Lubben accompanying the application, and we are in accord with the conclusion of the trial judge that the factual circumstances disclosed by the proof submitted did not adequately warrant the nullification of the judgment. It has been stated many times that a just, sufficient, and valid

defense to the cause of action and stated in clear and unmistakable terms is a prerequisite to the opening of a judgment. Schulwitz v. Shuster, supra , and cases therein cited. In that particular, among others, the basis of the application was deficient. The order under review is accordingly affirmed.

In perusing the record in this case the meditations of the author of this opinion have drifted somewhat beyond the boundaries of the present appeal.

I observe from an inspection of the complaint that the plaintiff prosecuted this action to recover the reasonable value of the labor performed and materials furnished by it from the individual defendant, Lubben, who allegedly made the bargain, and from the defendant corporation as his undisclosed principal.

At the conclusion of the plaintiff's evidence a judgment was granted without objection in favor of the plaintiff against the corporation as an undisclosed principal. The trial was then continued to determine the liability of the defendant Lubben, and the jury rendered a verdict in favor of the plaintiff in like amount against Lubben.

This sequence of events agitated in my mind the question whether the plaintiff in taking the judgment against the corporation had not elected to hold the undisclosed principal responsible for the indebtedness and by that judgment conclusively established that in the transaction the relationship of debtor and creditor existed under the contractual engagement between the corporation and the plaintiff.

More than a century ago it was said by our Court of Errors and Appeals to be the then "well settled rule, the vendors were not compelled to look to the agent only, but on the discovery of the principal, had the right to elect which, the principal or the agent, they would hold responsible." Perth Amboy Mfg. Co. v. Condit & Bowles , 21 N.J. Law 659 (E. & A. 1847). The rule was recognized in our court of equity. Borcherling v. Katz , 37 N.J. Eq. 150 (Ch. 1883). Of ...


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