Clapp, Jayne and Francis. The opinion of the court was delivered by Clapp, S.j.a.d.
This case brings up several of the vexed questions connected with the law of declaratory judgments.
Plaintiff sues in this declaratory action to have an alleged contract between itself and defendant pronounced void, N.J.S. 2 A:16-53, because of (so plaintiff claims) a lack of consideration and an indefiniteness in the agreement. But the trial court, holding declaratory relief could not be had, dismissed the case. 31 N.J. Super. 343 (Law Div. 1954). Plaintiff appeals.
Under the contract defendant was to receive certain commissions and profits. He has had the commissions, but no profits. One month before this suit, he demanded an account as to profits -- though not positively claiming anything was due him. Since then (the demand was over a year ago) he has made, so far as appears, not the least attempt to litigate the demand.
An action for a declaratory judgment, as we know it -- spoken of at times as a civilized remedy -- was first permitted in England by the epoch-making rules of 1883 (now English Order 25, r. 5) and from England has been brought, with changes, to this country. In England, it is said, declaratory relief is demanded in 60% of all Chancery suits. Sheldon v. Powell , 99 Fla. 782, 128 So. 258, 261 (Sup. Ct. 1930).
Various aspects of the remedy give to it a civilized character. Thus, in the case at hand, the court at the common law stands by indifferently except at the suit of the present defendant, and the plaintiff's only course is to put its own construction on the agreement and then at its peril refuse defendant any compensation and so, quite likely, destroy the business relationship between them which apparently still exists under the agreement. Borchard, Declaratory Judgments (2 nd ed.), 282 et seq. To furnish the plaintiff with a less harsh means of ascertaining its rights would seem to be quite within the "tranquilizing function" of a declaratory judgment. N.J. Bankers Ass'n. v. Van Riper , 1 N.J. 193, 198 (1948).
Why should the judgment be denied?
Is declaratory relief to be automatically barred because other relief is available or a right has been invaded ?
The statute is dispositive of the question.
N.J.S. 2 A:16-52 authorizes declaratory relief "whether or not further relief" -- that is, damages, specific performance, or any remedy not merely declaratory in character -- "could be claimed." Accordingly, by the decided weight of authority, a declaratory action is now held to be an alternative or cumulative, not an extraordinary, remedy. Borchard, supra , 316, 326; 1 Anderson, Declaratory Judgments (2 nd Ed.), 396; note 62 Harv. L. Rev. 787, 808 (1949).
A few cases will illustrate the point. Stephenson v. Equitable Life Assurance Soc. , 92 F.2d 406 (4 th Circ. 1937, Parker, J.); Woollard v. Schaffer Stores Co. , 272 N.Y. 304, 5 N.E. 2 d 829, 109 A.L.R. 1262 (Ct. App. 1936); American Life & Accident Ins. Co. v. Jones , 152 Ohio St. 287, 89 N.E. 2 d 301, 306, 14 A.L.R. 2 d 815 (Sup. Ct. 1949); Philadelphia Manufacturers Mut. Fire Ins. Co. v. Rose , 364 Pa. 15,
70 A. 2 d 316, 320 (Sup. Ct. 1950), following a statute. Cf. N.J.S. 2 A:16-51, requiring the uniform act to be so construed as to bring it into harmony with Rule ...