Lucky Calendar Co. v. Cohen

• Citation: 20 N.J. 451,120 A.2d 107
• Decision Date: 09 January 1956
• Docket Number: No. A--15,A--15
• Parties: LUCKY CALENDAR CO., Inc., Plaintiff-Respondent, v. Mitchell H. COHEN, County Prosecutor, Camden County, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 451

20 N.J. 451

120 A.2d 107

LUCKY CALENDAR CO., Inc., Plaintiff-Respondent, v. Mitchell H. COHEN, County Prosecutor, Camden County Defendant-Appellant.

No. A--15.

Supreme Court of New Jersey.

Argued Dec. 19, 1955.

Decided Jan. 9, 1956.

Ralph L. Fusco, Deputy Atty. Gen., argued the cause for appellant (Grover C. Richman, Jr., Atty. Gen., David M. Satz, Jr., Trenton, of counsel on the brief).

Joseph H. Stamler, Newark, argued the cause for the respondent (Gilhooly, Yauch & Fagan, Newark, attorneys, Joseph Stamler and James E. Fagan, Newark, of counsel on the brief).

The opinion of the court was delivered by

VANDERBILT, C.J.

I.

In a recent decision, 19 N.J. 399, 117 A.2d 487 (1955), this court decided adversely to the plaintiff its suit for a declaratory judgment not merely with respect to its 'coupon calendar' mentioned in the complaint and stipulation of facts, but also with respect to its 'jingle calendar' which was produced at the oral argument by the defendant.

The plaintiff then moved for a rehearing on various grounds, one of which asserted that it was denied due process with respect to the jingle calendar. To remove any possible doubt on that score we granted a rehearing limited to that ground alone, 20 N.J. 160, 119 A.2d 14, December 5, 1955.

The stipulation of facts in the case set forth that the plaintiff and the American Stores Company (which operates 278 Acme Stores in New Jersey) had contracted to introduce and operate the coupon calendar program in this State, but because of the doubt cast on the legality of the program by the defendant and his threat of criminal prosecution if it was pursued in his county, it did not desire to subject itself and its customer, The American Stores Company, to the hazards incident to a continuance of the program. This quite naturally led the trial court to believe that there was a bona fide controversy involving a substantial part, if not the whole, of the plaintiff's business here, and that the inception of the program was imminent. The trial judge (36 N.J.Super. 300, 115 A.2d 603, 605 (Law Div. 1955)), in disposing of the procedural preliminaries, correctly noted that:

'The first question presented is whether an actual controversy exists that is ripe for judicial interpretation. The Uniform Declaratory Judgments Act cannot be used to decide or declare rights or status of parties upon a state of facts which are future, contingent and uncertain. The act is not to be used to obtain advisory opinions. Tanner v. Boynton Lumber Co., 98 N.J.Eq. 85, 129 A. 617 (Ch.1925).'

This court, too, in its opinion (19 N.J. 399, 408--409, 117 A.2d 487) naturally relied upon the allegations of the stipulation of facts which led us to believe that substantial business operations of the plaintiff in this State were at stake and that its customer, The American Stores Company, was in agreement with it.

We now learn from the papers now submitted to us that the facts are totally different from those presented to us on the original argument. The plaintiff did not reveal until the filing of its papers on the present reargument that it had several different types of promotion schemes available for use under the name 'Lucky Calendar.' It did not inform the court in its brief prior to the argument, or even in the oral argument on September 27, 1955, that it had contracted with The American Stores Company for an entirely new and different promotion for New Jersey, I.e., the Lucky Calendar Jingle Contest.

Not only was the Coupon Calendar not in use at the time the plaintiff was asking this court for a declaratory judgment, but we are now informed, for the first time, that The American Stores Company had specifically refused to use the Lucky Calendar Coupon promotion in New Jersey because in the opinion of its general counsel the program was an illegal lottery under the laws of New Jersey and that it had refused to be a party to a test case to be instituted here because it 'was not the policy of the company to become involved in the interpretation of criminal statutes.' In fact The American Stores Company advised the plaintiff that

'If ultimately they were successful in establishing the legality of a promotion of this nature (the coupon calendar), if in the future we again used the Lucky Calendar promotion, we would consider its operation in New Jersey.'

Thus it is now admitted that there was in fact no uncertainty on the part of The American Stores Company as to the illegality of the coupon calendar, contrary to what was alleged in the complaint and the stipulation of facts.

Even after the decision of the trial court sustaining the alleged legality of the coupon calendar, The American Stores Company still refused to use the coupon drawing type of promotion in New Jersey, because it did not consider the decision of that court binding throughout the State, adhering, it is obvious, to its belief that the coupon program was illegal and would be so construed by our appellate courts.

The jingle calendar promotion program was instituted here, according to the plaintiff, 'about the second or third week of September, 1955, to run for a period of 13 weeks up to and including December 17, 1955.'

This was the state of affairs that existed September 27, 1955, the day of argument of the appeal from the judgment of the trial court in plaintiff's favor. At the oral argument the Deputy Attorney General presented to the court a copy of the jingle calendar then in use. The plaintiff's counsel stated on the motion for reargument that he did not expect that the jingle calendar would be mentioned or referred to until he heard and saw it presented to this court by his opponent. This court would never have known of this vital change in the facts submitted to it in the stipulation of facts if the jingle calendar had not been called to its attention by the defendant. An action for declaratory judgment proceeds on equitable principles. The relief which the plaintiff asks for presupposes a full and truthful disclosure. In seeking discretionary relief to enable it to avoid criminal prosecution, the plaintiff was bound to make known the change in the program to the court, because it bore materially on its right to a decision, Borchard, Declaratory Judgments (2d ed. 1941), page 35. A plaintiff, in a proceeding for declaratory judgment, may not pick and choose the particular facts upon which it will submit the issue to the court. Nothing short of a full bona fide disclosure in good faith of all the pertinent facts will suffice in an application for declaratory judgment. Nor would the plaintiff be heard to complain when the suppression of a controlling fact is brought to light by his adversary. We disposed of the jingle calendar in our original decision believing, from the face of the calendar and from the instructions and information given to the participants, that it was in fact no less illegal than its predecessor.

The jingle calendar promotion was in full swing at the time of our first opinion, and though uninformed of all the pertinent facts as stated above, we noted in it that it was unfortunate that the plaintiff and its customer, American Stores Company, had not waited for our decision before embarking on the new program (19 N.J. 399, 409, 117 A.2d 487). In spite of our decision and in complete disregard of it, the jingle calendar promotion was continued unabated by the American Stores Company. The American Stores acknowledged that it had notice of our decision, but it takes the unwarranted view that our decision 'could not have specific reference to the present promotion (the jingle calendar).' It was not until the Per curiam expression by this court on December 5, 1955 that it finally discontinued prospective operation of the jingle calendar promotion.

Under the true state of the affairs that existed between this plaintiff and American Stores Company, it would have been improper for the courts to exercise their discretion in favor of entertaining this action, Borchard, Declaratory Judgments (2d ed. 1941), page 56. If all of the facts now within our knowledge had been known to this court at the time of the argument we have no doubt that the action for declaratory judgment would have been dismissed without passing on the merits of eithr the coupon or the jingle program, leaving the plaintiff to assert its position in defending such criminal action as might be brought against it. By the concealment of pertinent facts this court has been induced to pass judgment on matters on which it never would have expressed an opinion, first, because events represented to be presently in controversy were not in fact in controversy insofar as the principal party in interest, American Stores Company, was concerned, and secondly, because the jingle calendar was actually being used instead of the coupon calendar mentioned in the stipulation of facts.

II.

It remains to determine whether the jingle calendar is any better than the view already taken of it by the court, on the basis of information now furnished the court. In considering the factual aspects of the case, we have accepted the statements made on behalf of the plaintiff in the light most favorable to it.

The jingle calendars are delivered free by mailing one to every family within the range of each Acme store. The cover announces that the recipients 'have a Chance to win at your Acme Super Market, 12 Cadillacs, 92 Mink Stoles, 1800 additional prizes.' (Emphasis supplied.) On each page the recipients are directed to 'see the last page for complete instructions.' The 'contest' blanks are on the bottom of each page on which a monthly calendar appears. They are appropriately dated for the week in which they are valid and conveniently scored for easy removal. There are 13 entry blanks identical in every respect except for their dates--each a week apart--and the first three lines of the jingle. The contestant is required to fill in his name, address...