Ajamian v. Schlanger, No. A--72

• Court: United States State Supreme Court (New Jersey)
• Writing for the Court: WILLIAM J. BRENNAN, Jr.
• Citation: 14 N.J. 483,103 A.2d 9
• Parties: AJAMIAN v. SCHLANGER et al.
• Decision Date: 15 February 1954
• Docket Number: No. A--72

Page 483

14 N.J. 483 103 A.2d 9 AJAMIAN
v.
SCHLANGER et al. No. A--72. Supreme Court of New Jersey. Argued Jan. 4, 1954.
Decided Feb. 15, 1954.

Page 485

[103 A.2d 10] Isadore Glauberman, Jersey City, argued the cause for appellants.

Aaron Ajamian, respondent, argued the cause Pro se.

The opinion of the court was delivered by

WILLIAM J. BRENNAN, Jr., J.

Notable 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 the ultimate merits of an entire controversy between litigants. It is a fundamental objective of this procedural reform to avoid the delays and wasteful expense of the multiplicity of litigation which results from the splitting of a controversy. Massari v. Einsiedler, 6 N.J. 303, 78 A.2d 572 (1951); In re McFeely's Estate, 8 N.J. 9, 83 A.2d 524 (1951); Tumarkin v. Friedman, 17 N.J.Super. 20, 85 A.2d 304 (App.Div. 1951), certification denied 9 N.J. 287, 88 A.2d 39 (1952).

The policy of the new practice contemplates that the Superior Court litigant not only should initially plead any legal and equitable claims or defenses, whether or not consistent, supporting his position in the controversy and seek all legal or 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 positions of both sides, that he should avail himself of the liberality allowed to form and reform his pleadings and the pretrial order accordingly, the opportunities for such amendment being restricted, in any substantial degree, only by R.R. 4:29--1(15) and 4:15--2 applicable to amendments offered after the entry of the pretrial order, or during trial.

The instant appeal involves a question concerning the alternative and inconsistent rights and remedies available to an allegedly defrauded purchaser of a business to disaffirm and rescind the transaction or to affirm and recover damages for the deceit. 5 Williston, Contracts, Sec. 1528;

Page 486

Restatement, Contracts, sec. 381, com. (d).; 18 Am.Jur., Election of Remedies, sec. 18, p. 141.

The purchaser, Harry M. Ajamian, bought an embroidery business from the defendants in June 1946. Within a month after taking possession he became aware of the allegedly fraudulent nature of representations allegedly made by the defendants to induce him to make the purchase. Nevertheless, he continued until March 1947 to deal with the property and to make instalment payments of the purchase price. On March 3, 1947, he filed a bill of complaint for rescission in the former Court of Chancery. The case was not moved, however, for almost three years, and on February 17, 1950, when it came on for pretrial conference, had been pending in the Superior Court for 17 months after its automatic transfer to that court on September 15, 1948 pursuant to Article XI, sec. 4, para. 8(e) of the Schedule to the 1947 Constitution. The rules of court also became effective on September 15, 1948, and the plaintiff does not suggest that the purchaser, at least by the time he moved the case, had any excuse on the ground of novelty of the practice or otherwise which relieved him of the necessity of prosecuting the action according to the rules.

At the pretrial conference the defendants requested and were granted leave to amend their answer affirmatively to plead the defense of laches and estoppel 'by reason of his (the purchaser's) conduct in the premises' and those issues were included among the ones listed in the pretrial order for disposition at the trial. However valid the purchaser's reasons for not earlier offering[103 A.2d 11] an amendment to ask legal damages for deceit, at least alternatively with the remedy of rescission, certainly it was highly imprudent...