On appeal from a final judgment of the Superior Court, Chancery Division, whose opinion is reported at 46 N.J. Super. 242 (Ch. Div. 1957).
Price, Schettino and Haneman.
The judgment is affirmed for the reasons expressed in the opinion of Judge Freund in the court below. 46 N.J. Super. 242 (Ch. Div. 1957), supplemented, however, as follows:
Defendant argues that the trial judge erroneously labeled the action as one for specific performance. It must
be remembered that it is from the judgment, and not the opinion, that appeal is taken. R.R. 2:2-1; Hughes v. Eisner , 8 N.J. 228 (1951). The written conclusions or opinion of a court do not have the effect of a judgment. From them no appeal will lie. "It is only what a court adjudicates, not what it says in an opinion, that has any direct legal effect." Suburban Department Stores v. City of East Orange , 47 N.J. Super. 472, 479 (App. Div. 1957). A judgment, admittedly, cannot be founded on a theory not appearing or raised in the proceedings or pretrial order. Lertch v. McLean , 18 N.J. 68, 74 (1955).
There are 13 issues detailed in the pretrial order. None of the issues is designated by any recognized nomenclature for types of equitable actions. An examination of the issues results in the conclusion that what the plaintiff actually sought was specific performance, together with auxiliary injunctive relief. The statement of the trial judge that the action was one for specific performance is consistent with the stated issues and the theory upon which the case was tried.
Even though the issue of specific performance was not specifically raised by the pleadings or the pretrial order, where, as here, the matter was tried without the objection of the parties on that issue, it shall be treated in all respects as if it had been raised in the pleadings and pretrial order. Ordinary procedure would call for an amendment of the pleadings and the pretrial order in the event an issue not raised in the pleadings and pretrial order was tried by consent or without objection. In the light of the fact that this matter was tried without objection on the issue of specific performance, defendant may not now be heard to complain. R.R. 4:15-2; Colozzi v. Bevko, Inc. , 17 N.J. 194, 203 (1955); 2 Schnitzer & Wildstein, N.J. Rules Serv. , A IV-386.
Defendant also makes some comment concerning the absence of fraud in connection with the piercing of the corporate veil of Bernarr Macfadden Foundation, Inc.
In Irving Investment Corp. v. Gordon , 3 N.J. 217, 223 (1949), the court said:
"It is where the corporate form is used as a shield behind which injustice is sought to be done by those who have the control of it that equity penetrates the veil."
That statement connotes merely that there must be equitable fraud present to permit of such action. Fraud, in the sense of a court of equity, includes all acts, omissions or concealments which involve a breach of a legal or equitable duty, trust or confidence justly reposed, and are injurious to another, or by which an undue or unconscientious advantage is taken of another. Howard v. West Jersey & S.S.R. Co. , 102 N.J. Eq. 517 (Ch. 1928), affirmed 104 N.J. Eq. 201 (E. & A. 1929); Riverside Trust Co. v. Collin , 114 N.J. Eq. ...