Bischoff, Kole and G. Gaulkin.
Defendant Sidney Packer appeals from a judgment entered against him and others on August 2, 1974 in the amount of $15,000 plus interest at the rate of 6% from January 16, 1971 plus costs.
The transaction which generated this litigation is described in detail in the opinion of the trial court, reported at 129 N.J. Super. 47 (Law Div. 1974).
Appellant contends that the trial judge erred when he, on his own motion, allowed an amendment to the complaint and pretrial order after trial was completed, "to conform to
proof pursuant to R. 4:9-2, to include the violations of N.J.S.A. 49:3-17 et seq. , since the facts alleged and testimony adduced provided reasonable notice as to the basis upon which relief was sought." Id. at 50.
Plaintiff's verified complaint alleged a cause of action based upon fraud and deceit involved in a transaction occurring January 15, 1971. In the complaint plaintiff alleged that she was fraudulently induced to lend money on an interest-bearing investment and was defrauded because the transaction was not a loan but a purchase of securities. The defense asserted was that she did not lend money but invested in the purchase of securities.
The issues, as defined in the pretrial order filed March 1, 1973, are as follows:
LEGAL ISSUES AND EVIDENCE PROBLEMS: Fraud, deceit and damages; agency and disclosed principle [ sic ]. Contract, fraud in the inducement, performance, estoppel, laches.
The case came on for trial on October 23, 1974 and, in the course of his opening statement, plaintiff's counsel indicated he wished to amend the complaint to assert a cause of action based on a violation of the Uniform Securities Law, N.J.S.A. 49:3-47 et seq. , specifically, N.J.S.A. 49:3-71, Civil Liabilities.*fn1 Plaintiff then moved for such an amendment and said:
* * * [I]f there is any question again as to the theory, then I submit with all due respect the plaintiff be allowed an opportunity to properly amend and have a reasonable adjournment so that there is no question at all about the theory that the plaintiff is proceeding on.
Defendants objected to the application, contending that while they were ready to defend against the claim of a fraudulently induced loan, they were not prepared to defend a ...