Defendant Arnold Israel moves for summary judgment in his favor upon the pleadings and pretrial order. The motion relies upon the fact that plaintiff has entered judgment against another defendant in the action. Since this is a fact established by the record, but not strictly within the pleadings between this defendant and the plaintiff, the motion is treated as falling under R.R. 4:58 rather than R.R. 4:12-3.
The legal question involved is whether a plaintiff who has entered judgment against an undisclosed principal may also pursue an action for the same indebtedness against the agent of the undisclosed principal.
The original complaint in this case sought recovery from defendant Israel for printed matter prepared on his order and delivered to him. A purported statement of the account is attached to the complaint and shows Israel alone as the debtor.
On February 14, 1964 defendant Israel filed an answer in which he alleged that he had given the orders and received deliveries as the agent of Unified Consultants, Inc.; that plaintiff knew that fact and also knew that defendant was not to be personally liable therefor. The answer alleges that plaintiff "treated all of the contracts and transactions" as "between the said plaintiff and Unified Consultants, Inc."
On June 30, 1964 plaintiff obtained leave to amend its complaint to join Unified Consultants, Inc. as a defendant. The amended complaint was filed on July 2, 1964. Defendant corporation appears to be located in New York. Service was made upon it by registered mail. Unified failed to appear or answer. On October 1, 1964 plaintiff entered a default against Unified. On October 9, 1964 it obtained final judgment against Unified.
In the amended complaint plaintiff repeated the claim against Israel as the principal, as charged in the original complaint. It added a second count, not in the alternative, alleging that Israel was agent for Unified in the same transactions (referring to the same copy of invoice as in the first
count). There is no allegation that plaintiff is uncertain as to which defendant is liable. The amended complaint simply alleges two inconsistent claims for the same amount against each defendant.
Although this pleading is inartistic, plaintiff surrendered no rights thereby. It had the right to assert inconsistent claims and theories and to await proof at the trial. Ajamian v. Schlanger, 14 N.J. 483 (1954); Young v. George C. Fuller Contracting Co., Inc., 12 N.J. Super. 554 (Law Div. 1951).
However, as above indicated, when the defendant corporation failed to defend, plaintiff entered final judgment against it. Plaintiff asserted that it knew the facts. Its president signed an affidavit of proof, which plaintiff filed with the court. In this affidavit it is asserted as a fact that the printed matter was "delivered to the defendant Unified Consultants, Inc., * * * pursuant to the orders of the defendant Unified Consultants, Inc. and its agent, servant and employee, the defendant Arnold Israel." (Emphasis supplied) The affidavit refers to an attached copy of plaintiff's ledger sheet. Unlike the statement attached to the complaint, the ledger sheet does not show Arnold Israel as the customer or debtor. The account is in the following name: "Devon's, c/o United Mgt., 680 5th Ave., New York, N.Y." It was upon this proof that judgment was entered against Unified Consultants, Inc.
In spite of this affidavit filed with the court, and the entry by the court in reliance thereon of a final judgment, plaintiff seeks to proceed on its first count against Arnold Israel as the sole debtor.
It is not charged that Israel misrepresented that he was the authorized agent of Unified, that Unified has denied the agency, and that plaintiff was thereby damaged. On the contrary, by its default Unified has admitted the debt and plaintiff has accepted Unified as the debtor. Nor has plaintiff alleged that Israel obtained credit for Unified on his personal guaranty of payment or ...