Water Com'rs of City of New Brunswick v. Cramer

• Decision Date: 01 March 1898
• Citation: 61 N.J.L. 270,39 A. 671
• Parties: WATER COM'RS OF CITY OF NEW BRUNSWICK v. CRAMER.
• Court: New Jersey Supreme Court

39 A. 671

61 N.J.L. 270

WATER COM'RS OF CITY OF NEW BRUNSWICK

v. CRAMER.

Court of Errors and Appeals of New Jersey.

March 1, 1898.

(Syllabus by the Court.)

Error to supreme court.

Suit by Caleb H. Cramer against the water commissioners of the city of New Brunswick to recover salary under a contract. From a judgment in favor of plaintiff on a case reserved, defendants bring error. Reversed.

Robert Adrain, for plaintiffs in error.

A. V. Schenck, for defendant in error.

COLLINS, J. This writ of error reviews the judgment of the supreme court on a case reserved, turned, by leave, into a special verdict, for the purpose of permitting a writ of error. The state of the case discloses the following facts: On February 8, 1892, the board of water commissioners of the city of New Brunswick, by resolution, appointed the plaintiff general superintendent of the waterworks of the city, and the parties entered into a written contract whereby it was agreed that the plaintiff should perform the duties of such position for five years, and the board should pay him the yearly sum of $2,500 in monthly payments. It was also agreed that the plaintiff should, if desired, perform the duties of treasurer of the board without further compensation. On June 12, 1893, the board by resolution declared vacant the position of superintendent of the waterworks, and appointed another person thereto. The plaintiff tendered himself ready and willing to perform his duties, but was refused permission to do so. He has renewed his tender each month with like result, and has presented monthly bills. His suit is for the equivalent of compensation under the contract from July 1, 1893, to December 31, 1895, with interest on the monthly installments. He has diligently sought other employment without success, except that he has been employed, without compensation, as an officer of a corporation in which he is interested.

It is claimed that the case also shows that, before the suit was brought, the plaintiff had recovered, under said contract, a judgment for the value of his services for June, 1893, and that, therefore, his right to recover in this suit, under the same contract, is res judicata. This claim cannot be sustained. An estoppel or record, to be effectual, must be pleaded if there be opportunity to plead it. Ward v. Ward, 22 N. J. Law, 699; Black, Judgm. § 784. Not only did the plaintiff fail to plead such former judgment in his declaration, but he did in fact therein aver that he had performed and been paid for the services agreed on in the contract up to July 1, 1893. He met the defense set up by notice in lieu of plea, by an answering notice, on the merits, without reference to any former adjudication. Nor was any estoppel of record established by proof. It was, indeed, admitted by defendants, that the plaintiff had "brought a writ in the supreme court for $208.33 for services for the month of June, 1893, under the contract, and interest on the same; that there was a verdict in his favor at the April term of 1894 of the Middlesex circuit; that a rule to show cause was thereupon granted, which was discharged at the February term, 1895, of the supreme court; that the defendant paid the judgment, and that the case is reported in 57 N. J. Law, 478, 31 Atl. 384;" but the record was not produced, and there was no competent evidence of the issue tried and determined. The decision cited does deal with the legal question now being litigated, but it is entirely possible that a judgment for compensation for a month, during a part of which the defendants had accepted the plaintiff's services might, under the pleadings in the case, have been warranted, without involving an adjudication that the contract was enforceable as to subsequent compensation. The admission was made in order to explain why counsel did not intend to argue the points involved in the former decision, and it was coupled with the statement that it was the purpose of the defendants to review that decision, by means of a writ of error to be brought upon any judgment against them in the pending cause. Stare decisis, not res judicata, was the obstacle confronting the defendants at the trial. Had any purpose to claim an estoppel been disclosed, they could have objected to the evidence as not within the pleadings; and, had the record of the judgment been produced, they might have shown that it did not estop their defense. To work an estoppel a former judgment must be directly in point, and must involve the identical matter presented in the new action. This rule is strict. Chamberlain v. Hopper, 34 N. J. Law, 220; Insurance Co. v. Newton, 50 N. J. Law, 576, 14 Atl. 756; Cromwell v. County of Sac, 94 U. S. 351.

It must not be understood, however, that, had the former judgment been pleaded and proved, it would have been an estoppel of defense to the plaintiff's suit. The decision turned on a pure question of public law, and there is very respectable authority that such a question may be reconsidered in a subsequent controversy between the parties involving identical facts. In Boyd v. Alabama, 94 U. S. 645, the supreme court of the United States held that res judicata would not preclude inquiry into the constitutionality of a statute interpreted as if valid in a former cause between the same parties, and held to make a contract between the state and the defendants on facts proved in both causes. The case is not decisive, for it was an indictment, but the principle is plainly declared. In Commissioners v. Loague, 129 U. S. 493, 9 Sup. Ct. 327, the same court looked through a judgment, formed on coupons, to the statute under which the bonds were issued, and, finding it invalid, refused a mandamus to raise a tax to pay the coupons, although merged in the judgment. The judgment stood as such, but was held not to bar an inquiry into the law. The doctrine that the estoppel of a judgment is conclusive on the facts, but...