Igoe Bros v. Nat'l Sur. Co.

• Decision Date: 05 January 1934
• Docket Number: No. 28.,28.
• Citation: 169 A. 841
• Parties: IGOE BROS v. NATIONAL SURETY CO.
• Court: New Jersey Supreme Court

169 A. 841

IGOE BROS

v. NATIONAL SURETY CO.

No. 28.

Court of Errors and Appeals of New Jersey.

Jan. 5, 1934.

Appeal from Supreme Court.

Two separate suits by Igoe Brothers against the National Surety Company. From an order denying the defendant's motion to dismiss the plaintiff's cause of action, summons in which was tested September 24, 1932, and from a rule permitting the plaintiff to consolidate its two causes of action, the defendant appeals.

Order, rule, and judgment affirmed.

Williams & Leonard, of Newark, for appellant.

Milton M. Unger, of Newark, for respondent.

PERSKIE, Justice.

Appellant seeks to review an order and rule, each dated November 19, 1932, made by the late Chief Justice Gummere during the progress of the cause. The order denied appellant's motion to dismiss the respondent's cause of action, summons in which was tested September 24, 1932; and the rule permitted the respondent to consolidate its two causes of action against the appellant. The rule of consolidation provided that the allegations of the first cause should be known as "First Count" of the consolidated action and the allegations of the second cause should be known as "Second Count" thereof. Appellant also seeks to review the final judgment entered in favor of the respondent, after trial before Circuit Court Judge Smith, sitting without a jury.

The trial disclosed the following facts: On September 23, 1930, Maggi & Schoonover entered into a contract with the New Jersey state highway commission for the furnishing of labor and materials to complete the undertaking described in the contract as "Passaic River Bridge and Approaches, Paterson to E. Paterson, New Jersey, in Section 7 of Route 4 of the State Highway System of New Jersey." Pursuant to chapter 75, P. L. 1918, page 203, as amended in 1920 (Comp. St Supp. § 107—149C (1) et seq.), the contractor furnished a bond with the appellant as surety thereon. It is in the usual statutory form. The respondent sold Maggi & Schoonover structural steel, which was actually incorporated in the undertaking contemplated by the contract, and upon which the admitted balance of $7,000 was due.

On January 11, 1932, after the engineer in charge had reported that the undertaking was completed, the state highway commission adopted a resolution whereby "it approved acceptance of the contract with Maggi & Schoonover * * * and authorized final payment therein when in order." Respondent, informed of that resolution, served a statement of its claim on the surety, on March 26, 1932, and on April 12, 1932, instituted suit. On February 2, 1932, the state highway commission passed a resolution rescinding its action of January 11, 1932, and instead thereof approved "of the acceptance of the completed work on this contract of the making of semifinal payment thereof less 125% of the value of the uncompleted work which cannot be performed until spring." It appeared that some seeding, etc., that had not been done, and could not be done until spring, necessitated the foregoing action on the part of the state highway commission. Thereafter, on July 5, 1932, the state highway commission again adopted a resolution and "approved of final acceptance of the completed work * * * and authorized the making of final payment thereon when the necessary formalities have been observed." A dilemma faced the respondent. It was in a quandary. What was the actual date of acceptance? Unwilling, and properly so, to subject itself to the consequences of the uncertainty thus created, through no act or fault of its own, its counsel served the surety a second statement of its claim on August 2, 1932, and brought a second suit against the appellant on September 24, 1932. Appellant filed an affidavit of merits to this second suit and thereafter noticed respondent on a motion to dismiss the second cause on the ground of the pendency of the first cause of action—for the same cause and between the same parties. Respondent countered with a motion for a consolidation of the two suits with the results already indicated. Was the consolidation of the two suits erroneous? We think not.

As we understand the contention of the appellant, it is that there is but a single right upon which respondent could predicate its action, and having sued under appellant's bond, in the first suit, it could not, during the pendency of that suit, bring another action upon the same bond, based on the same subject. Appellant summarizes its contention on this point as follows: "If a prior action on the same bond for the same claim, as between the same parties, is not a bar to the second action, then by the same token a litigant in doubt of the date of acceptance might well bring fifty actions in the trembling hope that one of them might contain the proper date of acceptance. The common law system did not tolerate such practice." To this contention we think that it might well be observed that, since the right of the respondent to sue is based on the statute (Warren Bros. Co. v. Hartford Acc. & Ind. Co., 102 N. J. Law, 616, at page 618, 133 A. 479; see Skillman v. U. S. Fidelity, etc., Co., 101 N. J. Law, 511, 130 A. 564), and the statute makes that right depend upon certain proceedings being taken with reference to the date of acceptance of the work, then, if the body, as in this instance, the state highway commission, would pass fifty resolutions of acceptance and forty-nine of revocation, it may well be that a claimant would be obliged to go through the formalities of suing on each occasion, otherwise a lawsuit regarding the subject-matter might well be worthless. It might indeed be purely a matter of chance. Technical rules must yield to practical requirements. Appellant's answer shows a rather evasive tendency, or a lack of knowledge on appellant's part as to when it regarded that the state highway commission had actually accepted the work, for its answer to the first count set out that the contract was accepted on some date other than January 11, 1932, and its answer to the second count set out that the contract was accepted on some day other than July 5, 1932, and then when compelled by a demand for particulars to recite on what other day than January 11th it answered July 5th, and when compelled to state on what other date than July 5th it answered January 11th. Appellant of course, had a right to present inconsistent defenses. The respondent also had the privilege or rights of setting out its cause of action and base it on the two different dates of acceptance. The actual date of acceptance could not be and was not determined until trial. The suits were thus as though they were in the alternative. If respondent had limited its cause of action to one or the other day of acceptance, it might well have been caught in the position of the court finally determining that the date of actual acceptance was not the date elected by the respondent. It therefore elected to sue on each date of the alleged acceptance. It was a precautionary act. It proved to be a wise act The statute was enacted primarily for the protection of the public body and secondarily as an "additional obligation" for the protection of materialmen, etc. Franklin Lumber Co. v. Globe Indemnity Co., 102 N. J. Law, 9, 130 A. 608, affirmed 102 N. J. Law, 715, 133 A. 919. A dismissal of either suit before trial might have resulted in a denial of justice. The learned and discerning late Chief Justice Gummere did the eminently sensible and proper thing to consolidating the two suits. He was fortified by precedent. Den ex dem. Smith v. Fen, 9 N. J. Law, 335; Metropolitan Casualty Ins. Co. v. Lehigh Valley R. Co., 94 N. J. Law, 236,109 A. 743.

Appellant's second contention is that the trial court should have granted its motion to nonsuit the respondent as to the first suit (first count in the consolidated complaint) and to direct a verdict as to the second suit (second count in the consolidated complaint). We think that this contention is without merit.

Section 3, chapter 75, P. L. 1918, pages 203. 204, was amended by chapter 318, P. L. 1931. page 792, and further amended by chapter 142, P. L. 1932, page 254 (see Comp. St. Supp. § 107—149C (3). Under the act of 1918 a materialman could give a statement to the surety within 80 days after the acceptance of the work and could then institute suit after 60 days had expired from the date of such statement. Under the act of 1931, a materialman might give a statement to the surety before the acceptance or 80 days thereafter, and that suit might be instituted after the expiration of those 80 days. Under the acts suit had to be brought within one year from the date of acceptance.

It is urged that, since the act of 1918 was the law at the time when all the parties in this controversy entered into their respective contracts, the laws of 1931 impaired the vested rights of the appellant in the premises. This is not so. Rader v. Southeasterly Road District of Township of Union, 36 N. J. Law, 273; Potts v. New Jersey Arms & Ordnance Co., 17 N. J. Eq. 395....