On appeal from the Superior Court, Chancery Division.
For affirmance -- Justices Heher, Oliphant, Wachenfeld, Burling and Weintraub. For reversal -- Chief Justice Vanderbilt and Justice Jacobs. The opinion of the court was delivered by Wachenfeld, J. Jacobs, J., joined by Vanderbilt, C.J. (dissenting).
[23 NJ Page 262] This case adds another chapter to the large volume of litigation encountered in recent years relating
to the State's powers of escheat. Here, the subject of dispute is unclaimed deposits given by consumers to secure the defendant against nonpayment of charges for the services which it renders.
The Attorney-General commenced this action pursuant to the authority vouchsafed by N.J.S. 2 A:37-11 et seq., commonly referred to as the Fourteen-Year Personal Property Escheat Law. The complaint alleged the defendant, a public utility engaged in supplying electrical energy, had certain escheatable property within its possession and demanded a disclosure of its nature and amount. In reply, the defendant revealed it had received deposits from 4,356 customers in the aggregate amount of $18,416.44, which had remained unclaimed for 14 or more successive years previous to the institution of the State's suit. The defendant interposed an affirmative defense, however, claiming the applicable statute of limitations, R.S. 2:24-1, in force at the commencement of this proceeding, had barred the obtainment of any remedy by its obligees upon their choses in action and thereby negated the existence of any property rights escheatable to the State.
If the State had conceded the applicability of the six-year statute of limitations, it, of course had no alternative to admitting the validity of the defendant's argument and the corresponding futility of its own cause. State by Parsons v. Standard Oil Co., 5 N.J. 281 (1950), affirmed 341 U.S. 428, 71 S. Ct. 822, 95 L. Ed. 1078 (1951). It was the State's view, however, that the relationship between the defendant and its customers concerning the monies deposited as security partook sufficiently of the nature of a trust to preclude the running of the statute of limitations, at least until demand for a return was made upon the company. 2 Scott, Trusts (1939 ed.), §§ 12.4, 219, 219.1.
The issue was joined upon stipulations in the pretrial order and an affidavit by defendant's secretary and assistant-treasurer stating the rules and practices which the company followed with respect to its requirement and treatment of security deposits.
After argument, the judge sitting below rendered an oral determination holding a contractual relationship of debtor and creditor within the purview of the statute of limitations existed between the defendant and the consumer-depositors, giving the defendant a vested right in its defense. State by Parsons v. Standard Oil Co., supra. We certified on our own motion while the appeal was pending in the Appellate Division.
The first issue is presented by the parties' differing interpretations of the record compiled below. The detailed statement of unclaimed consumers' deposits furnished by the defendant indicates that the subject deposits became inactive by disconnections of service through the years 1902 to 1934. Nevertheless, the State urges us to consider the issues as if the conditions surrounding the requirement of all the consumer deposits in litigation were governed by the regulations of the New Jersey Board of Public Utility Commissioners, adopted in 1928, and the "Terms and Conditions of Service" filed with that administrative body by the defendant. See R.S. 48:2-29.5 enacted in 1935.
We think the stipulations of the parties, the affidavit of the defendant's secretary and assistant-treasurer, and the oral determination by the trial judge conclusively establish a concession on the part of the defendant that these regulations and its own statement of "Terms and Conditions" were applicable.
Since under the adversary system of litigation the responsibility for the course which the proceedings take lies upon the contesting parties, we concur in the State's argument that the defendant should be bound by its representations and stipulations made at the hearing below. The defendant should not be permitted upon appeal to alter its interpretation of the facts upon which the issue was framed and which has legitimately been relied upon by the State in its conduct of the cause. 50 Am. Jur., Stipulations, § 9; 83 C.J.S., Stipulations, § 24.
The provisions of the utility regulations which the parties agreed were relevant to the controversy read as follows:
"Rule I. A water, gas or electric utility, where the credit of a customer is not established, may require a deposit reasonable in amount as a condition of supplying service. * * *
Rule VIII. Upon closing any account the balance of any deposit remaining after the closing bill for service has been settled shall be returned promptly to the depositor with interest due.
Rule IX. Interest at the rate of at least four per cent. per annum must be paid by each water, gas or electric utility on all deposits held by it to secure the payment of bills for metered service; provided that interest need not be paid if the service is short term or seasonal service."
In accordance with the regulations of the New Jersey Board of Public Utility Commissioners, the defendant filed its tariffs and its "Terms and Conditions of Service" governing the rendition of service to its customers, and these statements were accepted by the Board. The ...