Silber v. James Drug Stores, Inc.
| Decision Date | 18 March 1940 |
| Docket Number | No. 403.,403. |
| Parties | SILBER v. JAMES DRUG STORES, Inc. |
| Court | New Jersey Supreme Court |
Appeal from District Court, Second District, Essex County.
Action by Samuel Silber against the James Drug Stores, Incorporated, a body corporate, to recover weekly allowance for expenses alleged to have accrued under an express contract of employment. From judgment dismissing the action, the plaintiff appeals.
Affirmed.
Argued January term, 1940, before TRENCHARD, CASE, and HEHER, JJ.
David L. Schwartz, of Newark (Herbert A. Kuvin, of Newark, of counsel), for appellant.
Samuel M. Goodman, of Newark (Bernard Freedman, of Newark, of counsel), for respondent.
On April 19, 1938, the plaintiff herein instituted an action against the defendant corporation in the Essex Circuit Court for the recovery of salary and a fixed weekly allowance for expenses alleged to have accrued under an express contract of employment, and an unpaid declared dividend on certain shares of the defendant corporation's common stock held by plaintiff.
The complaint was in four counts: (1) The first pleaded a contract made on November 15, 1935, whereby plaintiff entered into defendant's employ as general manager and salesman in consideration of the payment of a weekly salary of $40 and, in addition, $5 per week "in lieu of all general expenses which the plaintiff might incur in the further performance of his duties" as such, and nonpayment of the weekly expense allowance for ninety-two weeks, the period of plaintiff's service, or the total sum of $460; (2) the second averred defendant's agreement on May 1, 1936, "to increase" plaintiff's "salary from $40 to $50 per week," which increase plaintiff did not withdraw as earned, but permitted to accumulate, and a total indebtedness therefor of $350; (3) the third asserted a claim of $21.75 for an unpaid declared dividend on defendant's common stock; and (4) the last merely declared plaintiff's willingness to set off $66.02, acknowledged to be due defendant from plaintiff.
Defendant interposed a general denial of the indebtedness so alleged, and counter-claimed for moneys paid on plaintiff's account in the aggregate sum of $137.52. The answer to the counterclaim denied this claim in part.
The issue was tried before a jury. On defendant's motion, a non-suit was "granted as to the first count"; and the jury returned a verdict for plaintiff in the sum of $305.73, and "no cause for action" on the counterclaim. The trial judge directed that this verdict "be molded so that the same be a verdict of $350 in favor of the plaintiff * * * and a verdict of $44.27 in favor of the defendant * * * on the counterclaim." Judgment was entered accordingly, and there was no appeal. The judgment was fully satisfied on December 24, 1938.
Thereafter, on February 8, 1939, the instant action was commenced upon the same cause of action pleaded in the first count of the complaint filed in the Circuit Court action; and the district court judge, upon the admission in evidence of the record of that cause, dismissed the action upon the ground that "the right of action set forth in the state of demand in the District Court had been merged in the judgment for, plaintiff entered in the Essex County Circuit Court and that the plaintiff had no further right of action."
Plaintiff now invokes the doctrine that a judgment of nonsuit is not a bar to a subsequent suit upon the same cause of action —citing Beckett v. Stone, 60 N.J.L. 23, 36 A. 880; Carey v. Hejke, 119 N.J.L. 594, 197 A. 652; The Automobile Insurance Co. v. Conway, 109 N.J.Eq. 628, 158 A. 480; Federal Schools, Inc., v. Sidden, 188 A. 446, 14 N.J.Misc. 892. But that procedural rule is not apposite here. The matters pleaded in the first and second counts of the action brought in the Circuit Court constituted but one cause of action arising out of an indivisible contract for the rendition of personal service by the plaintiff in consideration of the payment of salary at the stipulated weekly rate and a fixed weekly additional payment "in lieu of all general expenses" which "might" be incurred by plaintiff in the performance of his contractual undertaking. Dixon v. Smyth Sales Corp., 110 N.J.L. 459, 166 A. 103; United Boxboard & Paper Co. v. McEwan Bros. Co., N.J.Ch., 76 A. 550. The allegations are not susceptible of any other interpretation. The agreement made the basis of the second count was a mere modification of the primary contract, and inseparable from it. The contrary contention was not made at the trial; nor is it interposed here.
And it is the settled rule that a single or...
To continue reading
Request your trial
-
Goodman v. Grace Iron & Steel Corp.
...(as distinguished from separate claims for relief founded on the same cause of action or transaction) * * *." See Silber v. James Drug Stores. 124 N.J.L. 401, 11 A.2d 756. It is the settled rule in this state, entirely apart from the provisions of the Practice Act of 1912 (Pamph.L. p. 377 R......
-
Wood v. Baker
...of a cause of action' consists in the commencement of an action for only a part of the cause of action. Silber v. James Drug Stores, Inc., 124 N.J.L. 401, 11 A.2d 756, 758. To the same effect, see Floyd v. C. I. T. Corporation, 191 S.C. 518, 5 S.E.2d 299; Scientific & Hospital Supply Corpor......
-
Stark v. National Research & Design Corp.
...of the term, whereas for breach of contract there is but one cause of action for the recovery of damages. Silber v. James Drug Stores, Inc., 124 N.J.L. 401, 11 A.2d 756 (Sup.Ct.1940); Cohen v. Wozniak, 16 N.J.Super. 510, 85 A.2d 9 (Ch.Div.1951); 1 C.J.S., Actions, § 103, p. 1318 and § 103(8......
-
Marino v. Wald.
...and having prosecuted one of those claims to judgment, plaintiff is not at liberty to bring this suit. See Silber v. James Drug Stores, Inc., 124 N.J.L. 401, 11 A.2d 756; F. W. Woolworth & Co. v. Zimmerman, 179 A. 474, 13 N.J.Misc. 505. The appellant was in the same position as one who may ......