Bradner v. Roffsell

• Decision Date: 04 March 1895
• Citation: 31 A. 387,57 N.J.L. 412
• Parties: BRADNER v. ROFFSELL.
• Court: New Jersey Supreme Court

31 A. 387

57 N.J.L. 412

BRADNER

v. ROFFSELL.

Court of Errors and Appeals of New Jersey.

March 4, 1895.

(Syllabus by the Court.)

Error to supreme court.

Action by Harriet Roffsell, administratrix, against Robert D. Bradner. Plaintiff had judgment, which was affirmed by the supreme court (29 Atl. 317), and defendant brings error. Reversed.

The action was begun in the Monmouth circuit by Harriet Roffsell, administratrix of Joseph Roffsell, deceased, against Robert D. Bradner, as builder and owner, upon a claim under the mechanic's lien law. The declaration as filed contained two counts upon a building contract under seal, made between Bradner and Joseph Roffsell, the common counts for work and labor done and materials furnished for Bradner by Joseph Roffsell in his lifetime, and other common counts for work and labor done and materials furnished for Bradner by the plaintiff. Upon demurrer the first two counts were stricken out. The general issue was pleaded to the common counts. The circuit court sent the cause to the common pleas for trial. The trial resulted in a verdict for the plaintiff. Exceptions were taken to the admission of evidence, to the charge and refusals to charge. Bradner sued out a writ of error from the supreme court, which affirmed the judgment of the common pleas. Thereupon he has removed the cause here for review by this writ of error.

Frank Bradner, for plaintiff in error.

Hawkins & Durand, for defendant in error.

MAGIE, J. (after stating the facts). The record discloses two claims on the part of the defendant in error. One claim is upon implied contracts between her intestate and the plaintiff in error, and is a claim in a representative capacity; the other is upon implied contracts between her and plaintiff in error, and is necessarily a claim in her own right. As the judgment upon each of these claims must be different, it was obviously irregular to join them in one action, and the court of common pleas erred in refusing to compel the administratrix to elect between the inconsistent claims, and purge the record of the improper counts. The judgment is entered in favor of defendant in error as administratrix. If there was no legal error in the trial, and a real question in controversy between the defendant in error, as administratrix, and the plaintiff in error was fairly and fully tried, and such a judgment is proper thereon, then there is ample power to amend the record by striking out the common counts framed to present her personal claim, and so to support the judgment. But the bills of exception show that the judgment cannot be supported upon the common counts of the declaration framed to present the administratrix's claim in her representative capacity. That claim was for work and labor done and materials furnished by the intestate in his lifetime to Bradner, raising an implied contract to pay therefor. The real question in controversy between the parties was different. It arose upon an express contract under seal made between Bradner and the intestate, which the administratrix claimed had been partly performed by the intestate before his death, and had been afterwards completed by her as his administratrix. This contract was produced and proved by the administratrix. It was not admissible on the issue made by the record, and did not support the claim disclosed in the common counts. But, if the real question in controversy between to parties was fairly and fully tried, and this judgment is the proper result of the trial, there is power amend by adding pleadings presenting the issue really tried, and so to support the judgment At the same time I must express disapprobation of the conduct of the cause in this respect. The administratrix, having made a claim, and produced evidence in support thereof, which required amended pleadings, failed to ask liberty to amend. Plaintiff in error repeatedly, but in vain, appealed to the trial court to require the proper amendment. No amendment being made, he then demanded a nonsuit on the ground that there was no evidence to support the claim which appeared in the record. This was refused, and, in my judgment, such refusal was error. The power of amendment bestowed upon courts of review, and liberally exercised by them, was not intended to encourage counsel to make up a record of general pleadings, and then to try the case upon evidence requiring special pleadings. When such a divergence from the record is plainly disclosed, I think it the duty of the trial court, if no amendment of the pleadings is asked for and made, to deal with the case as it appears by the record. So the supreme court in its review of this case, points out the necessity of amended pleadings, and indicates its intention to allow such amendment. Yet the record comes to this court unamended, and, if the judgment be affirmed here in this condition of the record, the defendant in error may bring an action on the contract, and the record would not support a plea of former recovery by plaintiff in error. But at the trial plaintiff in error did not rest upon his exception to the refusal to nonsuit on this ground. He proceeded with a defense directed at the real question in controversy disclosed by the evidence adduced by the administratrix. If, then, that question was fairly tried without error of law, the refusal to nonsuit was not injurious to him, and this court, notwithstanding the delinquency of the defendant in error in this respect, ought to permit such amendment of the pleadings to be made as will support the judgment.

Whether the administratrix was entitled to recover upon the contract made between her intestate and Bradner having been...