Clapp, Jayne and Francis. The opinion of the court was delivered by Jayne, J.A.D.
[42 NJSuper Page 365] The Wyckoff Electrical Supply Company and Wyckoff General Supply Co., Inc., are corporations
of common stock ownership whose businesses are affiliated. We have lately been concerned on appeal with the action prosecuted against the former company by one William Edwards [ Edwards v. Wyckoff Electrical Supply Co. ], 42 N.J. Super. 236 and also the present action against the latter corporation. The controversial issue in each action implicating an alleged oral agreement between the parties obligating the defendant therein named to pay to the designated plaintiff in addition to a stipulated salary a commission of two per cent on sales, was in essence similar. The actions were separately tried in immediate succession. In each action the jury returned a verdict in favor of the plaintiff, and in each the defendant therein has appealed from the consequent final judgment.
The appeal in each action has projected the question whether under the evidence of like import in material respects the statute of frauds (N.J.S.A. 25:1-5(e)) concerning oral agreements not to be performed within one year from the making thereof, was applicable as a bar to the alleged cause of action.
We freely discussed the failure of the defendant to aver the defense specifically in its answer, the omission of the defense in the pretrial order, and the belated endeavor to amend the answer, in our decision rendered in the Edwards case to which reference has been made. A repetition of our comments herein would be redundant.
We there adopted the principle of full and complete performance by the plaintiff and denied the application of the pertinent provision of the statute of frauds.
Suffice here appropriately to quote the concluding paragraph of the opinion:
"Assuredly in the particular circumstances of the present case wherein it is evident that the plaintiff has fully and completely performed all of the services contemplated to be accomplished by him pursuant to the oral contract, leaving only the unilateral promise of the defendant to remunerate the plaintiff, the application of the pertinent provision of the statute would produce intolerable mischief by depriving the plaintiff who has in good faith irretrievably discharged
his undertaking of the fruits of his labor. Vide, Cauco v. Galante , 6 N.J. 128, 138 (1951). Such is not the design of the statute."
On this branch of the present appeal our conclusion is parallel with that expressed in the decision of the Edwards case.
We recognize the additional ground of appeal in the present action. It is to be initially noted that while the two actions were tried in succession before the same judge and by the same attorneys and testimony was given by some of the same witnesses, the party litigants were not the same and the factual issue in the latter action, although of a similar character, related to the making of an employment agreement entirely independent of that alleged in the Edwards case. Vide , 31 Am. Jur. 675, § 162.
It appears to be the acknowledged fact that when the trial of the present action was undertaken on April 25, 1956, there were the names of only a few, perhaps ten, of the members of the general jury panel available for selection from the box. The twelve jurors who had served in the Edwards case, ...