Edwards v. Wyckoff Elec. Supply Co.

• Decision Date: 25 October 1956
• Docket Number: No. A--541,A--541
• Parties: William EDWARDS, Plaintiff-Respondent, v. WYCKOFF ELECTRICAL SUPPLY COMPANY, Defendant-Appellant. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 236

42 N.J.Super. 236

126 A.2d 29

William EDWARDS, Plaintiff-Respondent, v. WYCKOFF ELECTRICAL SUPPLY COMPANY, Defendant-Appellant.

No. A--541.

Superior Court of New Jersey.

Appellate Division.

Argued Oct. 1, 1956.

Decided Oct. 25, 1956.

George F. Losche, Hackensack, argued the cause for appellant (John D. Morrison, Wyckoff, attorney).

Maurice Levinthal, Paterson, argued the cause for respondent (Ward & Levinthal, Paterson, attorneys).

Before Judges CLAPP, JAYNE, and FRANCIS.

The opinion of the court was delivered by

JAYNE, J.A.D.

An examination of the pleadings in this action reveals a complaint by the plaintiff alleging that:

'1. In April or May, 1953, plaintiff and defendant agreed that defendant would employ plaintiff as manager of its electrical supply business at 289 Franklin Avenue, Wyckoff, New Jersey, and that plaintiff would be compensated for his services at a new salary after the usual deductions, of $95.00 a week, plus 2 per cent of all the gross sales of said business, to be paid to him at the end of each year.

'2. In accordance with said agreement plaintiff served as manager of said business for defendant from April or May, 1953 until the month of December, 1954, and was entitled to receive the aforesaid salary and commission during said period of employment.

'3. Defendant failed and refused to pay plaintiff the commission on the gross sales in accordance with their agreement although requested to do so.'

In answer thereto the defendant denied in a general manner each and every allegation of the plaintiff's complaint. At the pretrial conference no endeavor was exerted to amend or supplement the pleadings and the defendant's defensive position was summarized as follows:

'3. Deft's contention that there was an oral contract of hiring at a stipulated weekly salary of $102.00. This employment contract was oral and continued in full force and effect without any objection whatsoever from the plf from the week ending May 1, 1953 to Dec 10, 1954. No other agreement of any sort were made between plf and deft. Plf on his own terminated his contract of employment by serving two weeks notice of such termination on deft.'

Such was the frame of the controversial issue, obviously one of fact, as the action came to trial before a jury in the Bergen County Court. At the inception of the trial it was stipulated by counsel for the parties that the amount of the claimed commissions together with the accrued interest was slightly in excess of $2,000, and it was agreed that 'either the plaintiff is entitled to $2,000 or nothing.'

The trial judge presented to the jury for decision the single factual issue created by the conflicting and divergent evidence relative to whether the oral agreement embodied the provision for the payment to the plaintiff of the 2% Commission. No objection was addressed to the charge of the court on behalf of either party.

There was adequate evidence presented at the trial to justify the jurors, upon their determination of its credibility, in resolving that an oral contract of employment embracing the terms as alleged by the plaintiff had in fact been made. A verdict for the plaintiff in the stipulated amount eventuated and the defendant here appeals from the conformable final judgment.

The ground of appeal here asserted by counsel for the appellant arose in a somewhat peculiar fashion. It was not until the termination of the testimony affirmatively introduced in behalf of the plaintiff that counsel for the defendant sought to invoke the restraining provision of the statute of frauds that the plaintiff's evidence conclusively disclosed an agreement that was not to be performed within one year from the making thereof, hence the plaintiff's alleged cause of action based thereon should as a matter of law be dismissed. Counsel in his advocacy of the motion invited the attention of the trial judge to N.J.S.A. 25:1--5(e); McElroy v. Ludlum, 32 N.J.Eq. 828 (E. & A.1880); Degheri v. Carobine, 100 N.J.Eq. 493, 135 A. 518 (Ch.1926), reversed on another ground, 102 N.J.Eq. 264, 140 A. 406 (E. & A.1928); Deevy v. Porter, 21 N.J.Super. 278, 91 A.2d 158 (App.Div.1952), affirmed 11 N.J. 594, 95 A.2d 596 (1953).

The motion was denied and the controversial issue modeled by the pleadings and pretrial order, I.e., whether the employment agreement embraced a covenant by the defendant to remunerate the plaintiff in addition to the weekly salary by the payment of the alleged two percent commission, was ultimately submitted to the jury for determination.

Significantly the charge of the court transporting that sole issue to the jury encountered no timely objection by counsel for the defendant. The jury thereupon retired. It was thereafter that the tardy and dilatory idea of requesting leave to amend the defendant's answer to aver the statute arrived at the scene.

Counsel's then belated endeavor to thus stimulate the answer at that penultimate stage of the trial was denied. It is the denial of the aforementioned motion that constitutes in breadth the fundamental reason advanced by the present appeal for the reversal of the final judgment rendered in favor of the plaintiff for the stipulated sum of $2,000 with costs.

It is also of incidental interest to notice that one of the defendant's precursory defenses was that the officer of the defendant who employed the plaintiff lacked authority to engage him for a year on the basis of a supplementary commission on sales. Indeed, one cannot escape the impression that the ultimate endeavor of the defendant to employ the statute of frauds in the present action was a designedly postponed stratagem or an apostasy.

No one can reasonably doubt that counsel for the defendant should have in the spirit of fairness in some manner forewarned counsel for the plaintiff of his possible intervention of the statute, but the attitude is assumed by the defendant that the invocation defensively of the statute of frauds is procedurally embodied in an answer of general denial of the alleged contract. The justification for that position leans upon the adjudications in Owen v. Riddle, 81 N.J.L. 546, 547, 79 A. 886 (E. & A.1911); Maagget v. A. Brawer Silk Co., 95 N.J.L. 72, 76, 111 A. 656 (Sup.Ct.1920); Mancuso v. Loffredo, 136 N.J.L. 370, 56 A.2d 482 (Sup.Ct.1948); former Sup.Ct. Rule 58; Lozier v. Hill, 68 N.J.Eq. 300, 305, 59 A. 234 (Ch.1904); Douma v. Powers, 92 N.J.Eq. 25, 27, 111 A. 401 (Ch.1920); in contrast, where the agreement is acknowledged to be oral, vide Ziegener v. Daeche, 91 N.J.L. 634, 636, 103 A. 82 (E. & A.1918); Douma v. Powers, supra.

Directive of our present practice governing the composition of pleadings is R.R. 4:8--3, deliberatively promulgated with an awareness of the former practice in our jurisdiction and iterative of Federal Civil Rule 8(c), 28 U.S.C.A. It ordains that in responding to a preceding pleading, a defendant shall set forth affirmatively such a defense as the statute of frauds. An implication of waiver for the failure to do so sprouts from R.R. 4:12--8; Schnitzer and Wildstein, N.J.Rules Serv., A IV--312.

We ought not ignore the degree of...