Brown, J.d.c. (temporarily assigned).
The plaintiff has brought this action against the executors of the estate of Gustav Sommermann for breach of the decedent's contract to pay her for personal services rendered to him and to his wife from June 2, 1952 to June 21, 1958. Three theories of liability are advanced by the plaintiff in the pretrial order -- breach of express promise to pay wages, quantum meruit , and breach of the decedent's contract to provide wages for her in his will.
The defendants acknowledge that there was a compensable employment during the time and involving the services claimed by the plaintiff. The only issue is as to the nature of the arrangement between the parties. It was founded upon an express promise to pay "wages" in the amount of the reasonable value of her services, according to the plaintiff. She contends that such value was in the amount of $50 per week. Her maximum claim has been fixed at $15,000. The defendants contend that compensation was measured in amount by an understanding as to terms. They insist that the plaintiff is limited by her bargain to accept board and lodging, the sum of $20 in cash per month and a one-third share of decedent's residuary estate as payment in full.
It is undisputed that the plaintiff did receive her board and lodging and the monthly cash payments. It is further agreed that the plaintiff is the residual legatee of one-third of the testator's estate pursuant to his will and codicil probated in the Hudson County Surrogate's Court on or about July 2, 1958.
Did the defendants' decedent expressly agree to do more for the plaintiff than this? Her proof that he did consisted of her own testimony and the testimony of her brother, Julius Calzaferri, in the form of answers to interrogatories and cross-interrogatories taken from him at Frankfurt Am Main, Germany.
The plaintiff's direct examination was carefully limited so as to comply with the proscription of the Dead
Man's Act (N.J.S. 2 A:81-2) as to conversations with the decedent. She was permitted to establish the time period and nature of her work as well as the factual context in which it was performed. This was consistent with the admission of the defendants in the pretrial order. The first testimony by the plaintiff as to conversations with the decedent was adduced in response to questions on cross-examination. At the end of the trial, the plaintiff was called on rebuttal to testify that Mr. Sommermann expressly promised to have his attorney, the defendant George J. Kauper, take care of the wages for which she asked. The defendants objected to this testimony as being incompetent under the statute. Its competency was urged by the plaintiff on the ground that the door was opened on cross-examination.
The question whether a suing party is made competent to testify as to statements by a decedent because the representative first enters the area through cross-examination of the party appears not yet to have been answered in the decisional law of New Jersey. Aspects of the problem have been touched upon in cases involving limited waiver. Where, for instance, the decedent's representative, during cross-examination of the suing party, elicited a responsive answer regarding a transaction with the decedent, the answer was allowed to stand despite the representative's objection. Such conduct waived the protection of the statute. This was the holding in Messenger v. Paterson Savings Institution , 91 N.J.L. 654 (E. & A. 1917). Proof of the alleged contract was adduced by the testimony of third persons. There was no contention that the waiver opened the door for further direct testimony by the suing party. In Lowe v. Doremus , 86 N.J.L. 325 (E. & A. 1914), a reciprocal situation was presented. The representative there sought to make the suing party's answers to interrogatories evidential despite the bar preventing the latter's direct testimony as to the transactions. The court upheld the right of the estate to do so. The statute, the court said, did not require the representative first to offer himself as a witness
to decedent transactions before calling the suing party as a witness on the subject. Here again there was no issue litigated as to resulting effect upon the statutory bar in general. The party suing in Ludlow v. Dwyer , 3 N.J. Super. 1 (App. Div. 1949) was improperly allowed to testify on direct examination concerning a transaction with the decedent. He contended that this error was cured by the fact that the representative cross-examined him on his statement. The court held that because the cross-examination was strictly confined to the direct examination it did not constitute a waiver of the objection to its admission. Again the decision stopped short of the question whether a suing party is made competent to testify as to statements by a decedent because the representative has first inquired into the subject through cross-examination. In other words, the representative in Ludlow had simply acted to meet the thrust of the adverse case.
What is the rule of law when it is the decedent's representative who first verges into the prohibited area? And what is the consequence when he does so in an instance where the suing party, having complied with the interdiction of the statute, thereafter contends that the door has been opened to his full competency? The opinion in Ludlow refers to two foreign decisions in which a dispositive rule is recognized. The first of these authorities is In re Gochring's Estate , 263 Pa. 47, 106 A. 60 (Sup. Ct. 1919), in which it was said:
"Where the examination in chief of the witness has been confined to matters occurring after the death, and the cross-examination is extended so as to contain matters occurring in the lifetime, to whatever extent, so far witness is accredited by the opposing party, and because of this he becomes a competent witness in his own behalf as to all such matters. The party responsible for the removal of the disability of the witness is the cross-examining party; he may not remove it for his own purpose and deny to the other party equal share in the resulting advantage. The logic of ...