This case comes before the court on the defendant's motion for (1) an order dismissing the action because the complaint fails to state a claim against the defendant upon which relief can be granted for the reason that the six-year statute of limitations is a bar to this action, R.R. 4:12-3; or (2) in the alternative for a summary judgment for the defendant on the ground that there is no genuine issue as to any material fact and that the defendant is entitled to a judgment as a matter of law based on the fact that the plaintiff is estopped from pursuing this action since he has brought suit as to this same subject matter in the Chancery Division of Gloucester County, R.R. 4:58-3.
The plaintiff's complaint is in three counts, the first two counts are in tort for conversion and the third count is for the breach of a vested contractual right in the plaintiff which the defendant violated. The suit involves the cashing of seven United States Savings Bonds, Series "E," in the joint names of the plaintiff and Annie V. Thomas, with the right of survivorship. The bonds were allegedly cashed by the
defendant on various dates between December 22, 1952 and June 15, 1953. The suit against this defendant was instituted on August 6, 1959.
The plaintiff in his complaint alleges that he is the son of Annie V. Thomas, who, during her lifetime, purchased United States Savings Bonds, Series "E," in the joint names of Annie V. Thomas or Frank G. Thomas, with right of survivorship endorsed thereon. It is alleged that the payments were made on the bonds on the purported signature of Annie V. Thomas, but that payments were actually made to a third person and not to the plaintiff or Annie V. Thomas and that to whomever the payments were made they were not authorized to receive them. The plaintiff claims that during the life of Annie V. Thomas she was either physically incapable of appearing personally or was physically confined to a mental institution at the time that said bonds were cashed. Because of her physical inability to be present and because of her mental inability she could not appear before an officer of the defendant and establish her identity and did not in the presence of an officer of the defendant sign a request for payment as required by the United States department regulations on the reverse side of said bond. The said Annie V. Thomas was in the New Jersey State Hospital at Trenton, New Jersey, as a mental incompetent on December 30, 1952 and remained there until her death on April 22, 1957.
Following the death of said Annie V. Thomas this plaintiff instituted a suit against his brother, Albert C. Thomas, in the Chancery Division of Gloucester County, which complaint was filed on July 31, 1957, for an accounting. The plaintiff filed an affidavit in this cause wherein he states that he had no knowledge or information as to the conversion of the bonds in question until some time after the filing of an account by Albert C. Thomas in the estate of his mother.
The plaintiff does not deny that in the chancery matter (in item 6 of the pretrial order) he was granted leave to
amend the pleadings and to aver that the defendant Albert C. Thomas had wrongfully converted seven bonds issued in the name of the decedent and the plaintiff; and further, that the defendant, Albert C. Thomas, also wrongfully withholds five additional United States savings bonds belonging to the plaintiff; and that these amended pleadings are to be served on other parties who were given leave to answer within 20 days thereafter. The plaintiff admits that such leave was granted to him and that he intends to file the necessary amendments but as yet has not done so.
On June 11, 1958 the attorney for the plaintiff sent a letter to Camden Trust Company making a formal demand against the defendant for the amount of the bonds that were cashed, and on June 12, 1958 the attorney for the plaintiff received from the defendant an acknowledgment of said letter.
Among the reforms introduced by the judicial article of the 1947 Constitution and the implementing Rules of Court is the fusion of the powers of law and chancery in one Superior Court functioning within a simple and flexible procedural framework designed and purposed for the just and expeditious determination in a single action of all the ultimate merits of an entire controversy between litigants. The policy of our practice contemplates that the Superior Court litigant not only should initially plead any legal and equitable claim or defenses, whether or not consistent, supporting his position in the controversy and seek all legal and equitable remedies which he may desire, but also, with the aid of the broad discovery and pretrial procedures by which he may obtain all the facts material to the position of both sides, that he should avail himself of the liberality allowed to form and reform his pleadings and the pretrial order accordingly, the ...