Meirick v. Wittemann Lewis Aircraft Co., Inc.

• Decision Date: 18 June 1923
• Docket Number: No. 71.,71.
• Citation: 121 A. 670
• Parties: MEIRICK v. WITTEMANN LEWIS AIRCRAFT CO., Inc.
• Court: New Jersey Supreme Court

121 A. 670

MEIRICK

v. WITTEMANN LEWIS AIRCRAFT CO., Inc.

No. 71.

Court of Errors and Appeals of New Jersey.

June 18, 1923.

(Syllabus by the Court.)

Appeal from Supreme Court.

Action by Charles M. Meirick against the Wittemann Lewis Aircraft Company, Inc. From a judgment for plaintiff, defendant appeals. Affirmed.

Winne & Ranta, of Hackensack, for appellant.

Philip Schotland, of Newark, for respondent.

BLACK, J. The only point involved on this appeal is the application of the principle of res adjudicata. The second defense to the action was stricken out, on the ground that the matters set forth disclose no defense. This is the ground of appeal alleged as error. This suit was brought, as disclosed by the pleadings, to recover on a quantum meruit for services rendered. The second defense interposed to the suit was, the plaintiff had been employed by the defendant as secretary at a salary of $200 per week. That case was tried on the theory of a contract between the plaintiff and the defendant. At the trial the jury rendered a general verdict against the plaintiff and in favor of the defendant. This was the defense that was stricken out. This is the error complained of. The trial of the present case resulted in a verdict in favor of the plaintiff and against the defendant; upon that verdict judgment final was duly entered in the Supreme Court. The ruling of the court striking out the second defense is the only ground of appeal alleged as error.

It was said in the case of Mershon v. Williams, 63 N. J. Law, 401, 44 Atl. 211: "A matter is not to be regarded res adjudicata unless there be identity of the thing sued for." In the first suit a specific contract was alleged as the basis of a recovery. In the present suit a recovery is sought for services based on a quantum meruit. There is no identity of the thing sued for in each suit.

The recognized rule applicable to the topic under discussion, supported by a long line of cases, is thus stated in 23 Cyc. 1158:

"A proper test in determining whether a prior judgment between the same parties concerning the same matters is a bar to a subsequent action is to ascertain whether the same evidence which is necessary to sustain the second action would have been sufficient to authorize a recovery in the first; if so, the prior judgment is a bar. But if the evidence offered in the second suit is sufficient to authorize a recovery, but could not have produced a different result in the first suit, the failure of the plaintiff in the first...