125 A. 243 | N.J. | 1924
This suit is based upon a written contract dated May 24th, 1922, made in Hamburg, Germany, between plaintiff, a resident of Germany, and defendant, a resident of New York. Plaintiff was a theatrical performer. Defendant was a theatrical producer. The contract provided for a thirty-week engagement to be performed by the plaintiff for the defendant during the theatrical season of 1922-1923 throughout the United States and Canada, at a weekly salary of $300. After performing for a few days, plaintiff was discharged at Brooklyn, New York, on September *100 9th, 1922. She alleged that she was wrongfully discharged. The defendant contended that the discharge was a proper one. The jury found in favor of the plaintiff, and the question of wrongful discharge was, therefore, set at rest.
On September 28th, 1922, a writ of attachment was issued out of the Essex Circuit Court at the suit of the plaintiff against the defendant on the ground of his non-residence. Defendant entered a general appearance in the cause and stated therein that he was willing to accept a declaration and complaint at the suit of the plaintiff. Thereafter, complaint and answer were duly filed. Defendant's answer denied that plaintiff was discharged from defendant's employ without reasonable or just cause, and also denied that she performed all of the agreements and conditions. And for a separate defense pleaded paragraph 12 of the contract, which provides, inter alia, that the contract shall be construed only according to the laws of the State of New York, and that any suit or action thereon shall be brought, and shall be maintainable only in a court held within the county and State of New York and not elsewhere; and averred that the Essex County Circuit Court was, therefore, without jurisdiction in the premises. And for another separate defense (sixth) it was pleaded that the defendant, since the institution of the cause, had been adjudged a bankrupt pursuant to the act of congress relating to bankruptcy, and had filed a schedule setting forth his assets and liabilities, in which was included the claim of the plaintiff, due notice of the pendency of which said bankruptcy proceedings had been given to the plaintiff; that the time within which application for discharge might be made in said bankruptcy proceedings had not then expired, and, if discharge were granted, the indebtedness to the plaintiff would be discharged; that the matter in controversy between the parties, therefore, was one which should be adjudged by the federal court, and that the Essex Circuit Court should not assume jurisdiction; that in the event that that court should assume jurisdiction, it should only be for the purpose of determining the amount of indebtedness due to the plaintiff from the *101 defendant, staying further proceedings pending the determination of the bankruptcy proceedings and the discharge of the bankrupt. The case was brought to trial before Judge Mountain and a jury. There was a verdict for plaintiff, upon which judgment was entered, and defendant appeals here.
There are two grounds of appeal urged — (1) the court erred in striking out the defendant's sixth defense; (2) the court erred in assuming jurisdiction in the case in view of clause twelve of the contract.
First. Because it appears that the debt on which the judgment under review was recovered is one from which a bankrupt is entitled to be discharged under the Bankruptcy act, which would relieve the defendant from his obligation to the plaintiff under the contract sued on, it is suggested in the brief on his behalf, that if the court should have heard the case, it should only have been for the purpose of fixing the amount of liability, and that plaintiff should be restrained from further proceedings under the judgment until disposition of the bankruptcy proceedings.
We think that it was proper for the trial court to determine the suit at bar, and that it was not error to strike out the sixth defense, so that if the plaintiff was entitled to recover on the contract, the amount due from the defendant could be collected from the surety company that went on the bond to release the attachment, even if the defendant obtains his discharge in bankruptcy, and the recovery cannot by law be collected from him. See Butterick Publishing Co. v. BowenCo.,
Second. It is argued that because of the stipulation that the contract shall be construed only by the laws of New York, and any suit brought thereon shall be in the county and State of New York only, the Essex Circuit Court had no jurisdiction *102 to hear and determine this cause. We think that the agreement in that behalf in the contract made, if lawful and enforceable, was waived by the conduct of the defendant, and it therefore becomes unnecessary to decide as to the situs of the forum.
This is a transitory action, and, consequently, triable here (Hill v. Nelson,
There was an answer (substituted for a plea under our present practice) objecting to the jurisdiction, coupled with an answer to the merits. It has been repeatedly held in the Supreme Court that, after bond given and appearance entered in attachment, the writ will not be quashed, but if it clearly appears that it is sued out wholly for a claim for which attachment will not lie, or against a person who is not subject to attachment, the property will be discharged from the lien attempted to be imposed upon it.Moore v. Richardson Baldwin,
In McGuinness v. McGuinness,
While it is true that rule 19 of this court provides that by agreement of parties an abridgement of the state of the case may be printed in lieu of the complete record, and while it is stipulated and agreed by the appellant and respondent here that this cause shall be submitted to this court upon the abridged record attached thereto, nevertheless, counsel by stipulation cannot omit anything of record necessary to properly present the matter to the court above. In the abridged state of the case the only witness examined on behalf of the plaintiff was that individual herself. The record before us, on that phase of the case, shows only the following:
"Direct examination by Mr. Kristeller.
"Mr. Kristeller — I offer in evidence the contract.
"Contract is marked Exhibit P-1.
"Mr. Kristeller — I offer in evidence the stipulation of counsel.
"Stipulation is marked Exhibit P-2.
"[Exhibit P-1 is read to the jury.]
"[Exhibit P-2 is read to the jury.]
"Q. Madam, you are the person who signed this contract?
"A. Yes, sir."
"Q. When this contract was signed where were you?
"A. In Hamburg.
"Q. That is where you live?
"A. Yes, sir.
"Q. Are these your signatures here?
"A. This is mine and this is my partner's."
The asterisks clearly indicate that there was further testimony. It is argued in the reply brief for appellant that the fact upon which he relies to establish the contention that the court below should not have assumed jurisdiction was only brought out on cross-examination. That only showed that the contract was executed at Hamburg (Germany).
This court has held that a complainant must prove his case, and that all uncertainties of fact should be resolved against him.Gordon v. Gordon,
In 4 C.J. 1320, it is stated that where a defendant attacks the complaint on the merits or enters into trial, he cannot in any form limit his appearance as a special one. See, also,Gabriel v. Mason Art, Inc., 2 N.J. Mis. R. 50.
The common law rule of practice is that a bill of exceptions should contain the exception made to the direction and ruling of the judge, together with so much of the evidence given at the trial as is necessary to make exception intelligible to the court of appeals, and furnish ground for the allowance or disallowance of the exception. 1 Chit. Arch. Pr. 441. Our Practice act (Comp. Stat., p. 4118, § 213), by requiring that a bill of exceptions shall contain so much only of the evidence as may be necessary to present the question of law upon which exceptions were taken at the trial, is a recognition and declaration of the common law rule. See, also, Dodge v. State,
Now, conceding defendant's view that the fact that plaintiff was not entitled to sue on the contract sub judice, was brought out on plaintiff's cross-examination, nothing appears on that examination except that the contract was made, and that in Germany. Further cross-examination may have disclosed facts constituting waiver by defendant. And, for that matter, the examination of other witnesses for the plaintiff may have disclosed it. We cannot infer in favor of an appellant who does not return all of the pertinent testimony with the record on appeal, that waiver was not disclosed in the testimony which has been omitted. *106
Although exceptions in civil cases have been abolished by the Practice act of 1912 (page 382, section 25), objection or exception must now be noted, and the ground should be stated as heretofore. Kargman v. Carlo,
The views above expressed lead to affirmance of the judgment under review.
For affirmance — THE CHANCELLOR, CHIEF JUSTICE, TRENCHARD, PARKER, MINTURN, KALISCH, BLACK, KATZENBACH, CAMPBELL, LLOYD, WHITE, GARDNER, VAN BUSKIRK, CLARK, McGLENNON, KAYS, JJ. 16.
For reversal — None.