68 A.2d 542 | N.J. Super. Ct. App. Div. | 1949
This is an appeal by the defendant from a summary judgment for plaintiff entered in the Hudson County Court.
In 1930, the defendant Alexander Simpson delivered to the plaintiff Hudson County National Bank three promissory notes totalling $19,000, together with stock of the Trust Company of New Jersey as collateral security. The notes were payable on demand and contained numerous stipulations for the Bank's protection, including a provision that upon sale of the security the maker shall remain responsible for any deficiency in payment of principal or interest "waiving any and every benefit, exemption and privilege under any law now or hereafter to be in force." In 1945, the plaintiff, having failed *137 to realize the face amount of the notes by sale of the collateral, filed a complaint in the Hudson County Court of Common Pleas seeking recovery of $17,168.20 plus interest. The defendant's answer and counterclaim set forth primarily that (1) the statute of limitations had barred the claim, and (2) in 1935 the plaintiff had accepted an assignment of certain moneys due the defendant in full accord and satisfaction of its claim against him. The plaintiff moved to strike the answer and counterclaim but the court, finding that the affidavits submitted "set up controversial issues of law and fact," denied the motion. The order denying the motion granted leave to the plaintiff to renew it "if the proofs produced at the trial of this cause warrant such action." In due course the plaintiff filed an amended reply and answer to counterclaim which set forth that the provision in the notes constituted a waiver of the statute of limitations.
Thereafter, the defendant filed a bill of complaint in the Court of Chancery seeking to restrain the plaintiff from asserting the alleged waiver of the statute of limitations. The bill was dismissed because the issues presented could be adjudicated in the law court and the dismissal was affirmed by the Court of Errors and Appeals. See Simpson v. Hudson CountyNational Bank,
We have concluded that the entry of summary judgment was erroneous. The defendant's motion sought, in effect, a determination in his favor under the statute of limitations. There was no cross-motion for summary judgment and, indeed, *138 such cross-motion was presumably unavailable in view of the order, entered by another judge, denying plaintiff's earlier application for summary judgment upon the finding that there were controversial issues of law and fact. In so far as the record before us discloses the only real issue properly before the lower court was whether the defendant was entitled to judgment under his defense based upon the statute of limitations; having concluded that the provision of the notes constituted a lawful waiver of this defense the court should simply have denied the defendant's motion and permitted the plaintiff to proceed to trial.
The further question raised by the defendant as to the soundness of the lower court's determination that the provision in the notes constituted a legally effective waiver of the statute of limitations has given us much concern. In the recent case of National Bond and Investment Co. v. Flaiger,
Professor Williston indicates that the rule expressed in theFlaiger case is the "better view" and has been adopted by the majority of jurisdictions as well as the Restatement. See 1Williston, Contracts (Rev. Ed. 1936), § 183. See, also, the cases collected in 1 A.L.R. 2d 1445 (1948). Notwithstanding the foregoing, the earlier New Jersey cases incline *139
to support a contrary view. In Quick v. Corlies,
Unlike the situation presented in the Quick case, we are not here concerned with a specific waiver of the statute of limitations but are confronted with vague language which purports to waive "any and every benefit, exemption and privilege under any law now or hereafter to be in force." We do not believe that the parties contemplated by this language, the suspension, at inception, of all laws which might otherwise be available as defenses, including such statutes as those relating to usury and to discharges in bankruptcy; indeed, any such attempt would generally be held to be invalid. See Williston, supra, at § 1770. Nor do we believe that the parties contemplated, without any specific reference thereto, the suspension forever of the statute of limitations, thus permitting action, fifteen years (as here) or, indeed, fifty years after execution of the notes. Cf.Hellyer v. Baldwin,
The judgment below is reversed.