Schrage v. Liebstein, A--438

• Decision Date: 15 November 1951
• Docket Number: No. A--438,A--438
• Citation: 16 N.J.Super. 384,84 A.2d 750
• Parties: SCHRAGE v. LIEBSTEIN.
• Court: New Jersey Superior Court — Appellate Division

Page 384

16 N.J.Super. 384

84 A.2d 750

SCHRAGE v. LIEBSTEIN.

No. A--438.

Superior Court of New Jersey Appellate Division.

Argued Oct. 29, 1951.

Decided Nov. 15, 1951.

Phil O. Mayer, Newark, argued the cause for appellant (Mayer & Mayer, Nwark, attorneys).

John J. Budd, Newark, argued the cause for respondent (Budd & Larner, Newark, attorneys).

Before Judges McGEEHAN, JAYNE and WM. J. BRENNAN, Jr.

The opinion of the court was delivered by

WILLIAM J. BRENNAN, Jr., J.A.D.

Plaintiff in 1946 planned to start a business in the vicinity of Providence Rhode Island, and paid defendant $3,200 for two machines, a tuber and a vulcanizer. He did not have a plant at the time and defendant agreed to hold the machines at his Newark shop for shipping instructions. The Providence plans fell through and it was not until 1949, three years later, that plaintiff after making a California connection requested delivery of the machines. He alleges that he bought two specific machines and that when he demanded delivery defendant admitted to him that he had sold them to others. Defendant denies a sale of specific machines. His position is that he was only obligated to deliver machines of the particular manufacture and sizes referred to in the parties' correspondence. After unsuccessful efforts to compromise, plaintiff notified defendant in writing that he rescinded the contract and demanded the return of his money. Defendant refused to make the refund and plaintiff brought this action and recovered a judgment upon a jury verdict in the Law Division, Essex County, for the purchase price plus interest and costs. A motion for new trial was denied, Schrage v. Liebstein, 12 N.J.Super. 550, 79 A.2d 910 (Law Div.1951).

The amended complaint, in separate counts, pleads inconsistent statements of claim in conversion and rescission, as may be done under Rule 3:8--5(b); see Young v. George C. Fuller Contracting Co., Inc., 12 N.J.Super. 554, 80 A.2d 135 (Law Div.1951). The trial judge, on motions by the defendant at the close of plaintiff's case and again at the close of the entire case, ruled that a right to relief on the conversion count was not established and submitted the case to the jury upon the rescission count alone, as to which, we find, there is ample proof upon all elements necessary to support a verdict for plaintiff.

The primary fact question raised by the sharply conflicting proofs was whether specific machines had been sold, or whether the contract could be performed by the delivery of machines of the particular manufacture and sizes, which defendant tendered himself ready, able and willing to do.

Defendant's first argument on his appeal is that it was error to submit the case to the jury on the rescission count. He contends that he was entitled to a judgment on one of his motions, arguing that plaintiff must be deemed by the course of procedure followed by him at the trial to have elected to stand or fall on the conversion count and thereby to be precluded from relief on the rescission count. He refers to plaintiff's failure during the trial affirmatively to elect between the inconsistent counts or expressly to abandon the conversion count, and to his pursuit of his right to relief on the conversion count to the point of submitting pertinent requests to charge.

Just what steps will constitute an act of election between inconsistent remedies has occasioned a considerable difference of view in the cases. 18 Am.Jur. 139, sec. 16. When, however, it is contended that a party's trial procedure or tactics constitutes an act of election between two pleaded inconsistent claims, at the least it should appear, and we do not think it does here, that by such course the party gained some advantage at the expense of, or some detriment was suffered by, his adversary, particularly in light of the greater liberality now permitted as to the pleading of inconsistent claims and defenses, designed, with our discovery and pretrial procedures, to...