author: Labrecque, J. A. D.

text:
    HENRY SCHAEFER AND DOROTHY SCHAEFER, HIS WIFE, PLAINTIFF-APPELLANTS, v. JUNE STRELECKI, DIRECTOR OF THE DIVISION OF MOTOR VEHICLES, DEPT. OF LAW AND PUBLIC SAFETY OF THE STATE OF NEW JERSEY, DEFENDANT-RESPONDENT. HENRY SCHAEFER AND DOROTHY SCHAEFER, PLAINTIFFS-APPELLANTS, v. CECELIA BALDEROSE AND DANIEL BALDEROSE, HER HUSBAND, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued March 31, 1969
    Decided August 20, 1969.

      Before Judges Gaulkiit, Collestee and Labrecqtje.

      Mr. Marvin Lieberman argued the cause for appellants Henry Schaefer and Dorothy Schaefer (Messrs. Jacob, Alfred & Bichard Levinson, attorneys).

      Mr. Newton H. Porter, Jr. argued the cause for respondent June Strelecki, Director, etc. (Messrs. Porter & Hobart, attorneys).

      Mr. Michael J. Cernigliari argued the cause for respondents Cecelia Balderose and Daniel Balderose (Messrs. Campbell, Mangini, Foley & Lee, attorneys).
   The opinion of the court was delivered by

Labrecque, J. A. D.

These consolidated appeals involve two inconsistent and irreconcilable verdicts.

Plaintiffs first sued defendants Mr. and Mrs. Balderose (Balderose). The latter denied that their car was involved and affirmed their denial in depositions. They were supported by the deposition of an apparently independent witness, Lynch. They thereupon moved for summary judgment. The factual basis for the motion is not stated but we assume it was plaintiffs’ and defendants’ depositions. The court granted the motion and entered summary judgment with prejudice.

Plaintiffs thereupon instituted suit against the Director of the Division of Motor Vehicles (Director) pursuant to the “hit and run” provisions of the Unsatisfied Claim and Judgment Fund Act, N. J. S. A. 39 :6-78 and 79. They had not made the Director a defendant in the Balderose action because they believed that McGainey v. Cable, 65 N. J. Super. 202 (App. Div. 1961) forbade such joinder. The action was defended by the Director and a full trial as to liability was had at which the plaintiffs testified that they were unable to identify either the vehicle that hit them or the owner or driver thereof, and Mrs. Balderose testified that she had not been the driver of the car involved in the collision with them. The only real issue submitted to the jury was whether the accident involved a known driver (Mrs. Balderose) or an unknown one. The jury returned a verdict in favor of the Director, thus finding, in effect, that Mrs. Balderose had been driving the offending car.

Following the verdict plaintiffs moved for a new trial on the ground of errors in the exclusion of evidence, in the charge and in the denial of their motion for a directed verdict, and on the further ground that the verdict was contrary to the weight of the evidence and the result of bias, passion, mistake, partiality and prejudice. The motion was denied and plaintiffs appealed.

Plaintiffs thereupon applied to the judge who had granted summary judgment in the Balderose ease for relief pursuant to R. R. 4:62-2 (f). The second appeal is from denial of their motion.

At the trial of the suit against the Director plaintiff Henry Schaefer testified that on August 20, 1964, as he was driving north on the Garden State Parkway with his wife Dorothy Schaefer as a passenger, he was struck violently from the rear shortly after passing the ramp leading from the New Jersey Turnpike to the Parkway. It had been raining, traffic was light and he was in the center lane when hit. The force of the crash caused the car to sway and it travelled a short distance before he was able to pull to the side and stop. He then observed that the ear had been struck in the rear and that the rear window had been knocked out. However, there was no other car in the immediate vicinity and no car had passed him from the time of the crash until he stopped. After waiting a short while, Schaefer drove about two miles to a telephone booth near the next exit and called his son-in-law for help. Upon the arrival of the latter, the police were called and Trooper Karlsen responded. Mrs. Schaefer’s testimony was in substantial accord with that of her husband. Neither one saw the car that struck theirs.

Karlsen testified that upon receiving notice of an accident near the ramp leading from exit 10 of the New Jersey Turnpike he went to the scene and found the Balderose car on the shoulder of the northbound section of the parkway, facing east. There was damage to the left front of the car and shattered glass over the entire width of the roadway at the scene. Mrs. Balderose told him she had struck a car which had suddenly come from the ramp leading from the Turnpike and that the car had continued on. He noticed no other car which could have been involved in the accident. He drove Mrs. Balderose to the hospital and on his return was detailed to the Schaefer accident. Damage to that car indicated it had been struck in the right rear and its rear window was missing. When the Schaefers were unable to describe the car that struck them he drove Schaefer back about two miles to the scene of the Balderose accident. Although the fragments of shattered glass were still present, Schaefer testified it was dark and he was unable to state “exactly” that that was the place of the accident. There was no proof of any other accident in the area on the evening in question, and Karlsen stated that he received no notice of any. The exit ramp could be reached only by traffic which had been proceeding north on the Turnpike, and was turning north onto the Parkway. The Schaefers testified they had not entered the Parkway by the exit 10 ramp but at a point south of it, at Perth Amboy, after visiting there with their daughter and son-in-law.

Mrs. Balderose testified that she entered the Parkway at Matawan and was driving north in the right-hand lane. As she reached the place where traffic entered the Parkway from the Turnpike a car “came from my right directly in front of me and I hit the brakes and skidded into the car and spun around.” After the impact she never saw the car that she struck, and her own car came to rest at a right angle to traffic, on the right shoulder (facing easterly). The witness Lynch stopped and helped her until the state trooper arrived. She saw no other car there. There was glass all over the road. She never noticed the lights of the car she struck but was sure that the car came from the ramp leading from the Turnpike.

It would appear clear from the foregoing that had the Director been joined as a defendant in the Balderose action the irreconcilable judgments now before us would not have been possible. Since such joinder was precluded by McGainey v. Cable, supra, we requested the parties to submit supplemental memoranda as to the propriety of our holding in that case, and they have done so.

In McGainey we held that where plaintiffs had obtained such information with regard to the responsibility of defendant Cable as to have led them to make her a defendant, they were precluded from joining the Director as a defendant in the alternative, but were required to first proceed to judgment against her.

McGainey has been the subject of frequent criticism as running counter to the spirit of our rules which reflect the policy of disposing of entire controversies, including all parties and issues, at one trial. R. R. 4:33-1.; 4:8-1. What has transpired here bears out the apprehensions expressed in Dietz v. Meyer, 79 N. J. Super. 194 (App. Div. 1963), where Judge Conford, dealing with a somewhat analogous situation, noted:

“Aside from the contingency of contributory negligence, which would of course bar plaintiff as against either defendant, plaintiff is entitled, as a passenger in one of the two cars involved in the accident, to recovery against one or both of the defendants as a matter of law. Only by a trial of the ease against both defendants at one time, however, is he assured of such a result. If the Director were not permitted to be joined, he would not be bound by a verdict in a trial involving only the known defendant exculpating that defendant on the theory that the accident was caused solely by the driver of the unknown car. Cf. Minardi v. Nocito, 66 N. J. Super. 187, 193 (App. Div. 1961). And if, pursuant to section 39:6-79, the plaintiff then brought an action against the Director, and the fact-finder at that trial concluded that the accident occurred solely by reason of the negligence of the known operator, plaintiff would be entirely bereft of a remedy, contrary both to the established policy of liberal construction of this act to promote the remedy, see Giles v. Gassert, supra, 23 N. J. [22], at p. 34, and to our modern practice philosophy of trial at one time of multiple claims arising out of the same event or transaction.
It seems apparent that the Legislature in drafting this act was not necessarily opposed to the idea of the Director’s being a co-defendant along with a known operator, as that very procedural posture is involved in section 39:6-80, mentioned above, permitting the impleading of the Director in a case where he was not originally joined as a defendant.” (at pp. 200-201)

See also Condit v. Director of Motor Vehicles, 98 N. J. Super. 295 (App. Div. 1967), certification denied 51 N. J. 275 (1968); Farnham v. Strelecki, 101 N. J. Super. 1 (App. Div. 1968).

In McGainey it was reasoned that unless the statute was interpreted to compel plaintiff to first proceed to judgment against Cable, “the Director would he unduly required to appear in every case of doubtful identity” (65 N. J. Super., at p. 204). Further experience with the “hit and run” statute now convinces us that our fears in that regard were unwarranted and that to permit the Director to be joined as an alternative defendant in an action such as the one before us would not have “unduly” burdened her. On the contrary, we are satisfied that where there is probable cause to entertain doubt as to the identity of the tortfeasor, the overall interests of the Director will be better served by permitting her to be made a party to the action at its inception. In this way she is in a position to follow the case, participate in the discovery, assess the advisability of settlement, and adduce at the trial such evidence as she may have to verify the identity of the assumed driver, thus lessening the possibility that a second suit against the Director will be required. Even were this not so, the fact that in some instances the jury might find against the assumed driver, thus avoiding the necessity of a second trial against the Director, is of no moment when balanced against the potentiality for injustice posed by the requirement of McGamey that there be separate trials (with the necessarily attendant possibility of inconsistent verdicts) in each such case.

We accordingly hold that where genuine doubt exists as to the identification of the person (owner or driver) responsible for the operation of an automobile in a “hit and run” accident resulting in personal injury or death, the plaintiff shall not be required to exhaust his remedy against the assumed driver and owner before recourse to suit against the Director, but, provided he is otherwise eligible to do so, may implead the latter as a defendant in the alternative in the suit against the assumed owner or driver, or both. Thereafter, liability shall be determined at a single trial. We are satisfied that this method of procedure best comports with the liberal construction to be given to the Unsatisfied Claim and Judgment Fund Law, Giles v. Gassert, 23 N. J. 22, 34 (1956), the spirit of our modern practice, and the requirements of substantial justice.

Here, we are convinced that the challenged judgments are both inconsistent and irreconcilable. At the conclusion of the taking of proofs at the trial against the Director it was clear (and not substantially disputed by the Director) that the only real issue involved was the identity of the driver of the ear which had run into plaintiffs. There was no factual support for the defense of contributory negligence. The proofs were likewise inadequate to establish the presence of a third car which could have been involved in a collision with plaintiffs — or that there had been any other accident in the area on the night in question. Thus, in resolving the issue of who was driving the jury was left with but two choices: Mrs. Balderose, or a person whose identity was unknown. By its verdict in favor of the Director, and the prior grant of summary judgment in favor of Mrs. Balderose, plaintiffs were left without any remedy whatever. Even had the judgment in favor of Mrs. Balderose been based upon a jury verdict, the same possibility of an inconsistent verdict would have been present.

We are satisfied that in view of the predictable miscarriage of justice which has resulted from plaintiffs’ adherence to the procedure laid down by McGainey, the ends of justice require the reversal of each of the judgments before us and a new consolidated trial in which the Director and Mr. and Mrs. Balderose will stand as adversary parties. Minter v. Bendix Aviation Corp., 24 N. J. 128, 136—137 (1957). In Minter, where the employer-respondent was faced with judgments in favor of each of two “wives” of a deceased employee, the court ordered a new consolidated trial as to both claimants. We see no difference in principle between judgments in favor of each of two contending petitioners in a compensation case, and judgments denying plaintiffs a recovery for injuries sustained in an automobile accident against either of two defendants, one of whom, of necessity, was responsible for the operation of the offending car. Only through a consolidated trial may the issues in the two actions before us be effectively — and consistently — disposed of. Greenberg v. Stanley, 30 N. J. 485, 504-508 (1959); Advance Piece Dye Works, Inc. v. Travelers Indemnity Co., 64 N. J. Super. 405, 416 (App. Div. 1960).

By reason of the foregoing we find it unnecessary to consider the grounds for reversal of each judgment advanced by plaintiffs.

Eeversed and remanded for a new consolidated trial as to all parties.


source: Caselaw Access Project

author: Consodine, J. C. C.

license: Public Domain

text:
    HANS SCHLOTT AND JOAN SCHLOTT, HIS WIFE, PLAINTIFFS, v. MADELINE MORTON, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided August 28, 1969.

      Miss Sandra D. Helbig, of the Newark Legal Services Project, for plaintiffs.

      Mr. Anthony T. Colasanti for defendant (Messrs. Van Riper and Belmont, attorneys).
   Consodine, J. C. C.

(temporarily assigned). Plaintiffs, residents of New York, unsuccessfully sued in a custody matter. They were represented by Newark Legal Services Project. The complaint was filed a few weeks before hearing. Defendant sought counsel fee and costs.

Plaintiffs then testified that their joint net income was $11,400 a year. Newark Legal Sendees Project objected to any allowance on the ground of its representation, subsequently claiming that on ascertaining the income of plaintiffs it had unavailingly sought to have them represented by retained counsel. There was no enumeration of their efforts in this regard.

Newark Legal Services Project operates under the Economic Opportunity Act of 1964 and is part of what is known colloquially as the anti-poverty program. Its funds, to the extent of 80%, come from the Federal Government, with the balance locally contributed from non governmental sources in space, equipment, professional time and money.

Representation by an agency operating with funds available from the Federal Government is not a bar to the award of counsel fees against the litigant under our practice, R. R. 4:55-7(a), R. 4:42-9 (a) (1), when defendant has been forced to retain counsel in defense of the complaint, was successful at trial, was in far needier financial position than plaintiffs, and was receiving no support from plaintiffs for the maintenance of their children.

Counsel fee of $350 and taxed costs against plaintiffs are awarded.


author: Collester, J. A. D.

text:
    MONMOUTH JUNCTION MOBILE HOME PARK, INC., t/a MONMOUTH MOBILE HOME PARK, AND J. R. T. VILLAGE CO., INC., t/a BROOKSIDE TRAILER COURT AND GEORGE BRODSKY, FRANK BANNON, AND MURRAY NECKMAN, t/a OAKDALE MOBILE HOME VILLAGE, A PARTNERSHIP, PLAINTIFFS-APPELLANTS, v. SOUTH BRUNSWICK TOWNSHIP, A MUNICIPAL CORPORATION, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued March 31, 1969
    Decided August 21, 1969.

      Before Judges Gaulkin, Collester and Labrecque.

      Mr. Leonard Adler argued the cause for appellants.

      Mr. Andre Wm. Gruber argued the cause for respondent.
   The opinion of the court was delivered by

Collester, J. A. D.

This is an appeal by plaintiffs, the owners of three mobile home parks located in South Brunswick Township, from a judgment of the Law Division upholding the validity of an ordinance adopted by defendant revising an ordinance which licensed and regulated mobile home parks.

Prior to the adoption of the amended ordinance the annual license fee for a mobile home park was $100. In addition thereto the township received personal property taxes assessed against the individual owners of the mobile homes. Effective January 1, 1968 the personal property tax was eliminated by an act of the Legislature. When plaintiffs submitted their $100 payments for the license period beginning September 1, 1967 the township did not issue the licenses.

The amendment was adopted on March 20, 1968. It increased the license fee to $500 for each park having up to 50 mobile home spaces, plus $5 for each space in excess thereof, and required payment of an additional monthly fee based on the size of the mobile home spaces. It provided, among other things, that mobile homes should be parked on each space so that there would be at least 15 feet side-to-side spacing and 10 feet end-to-end spacing between them; that a mobile home should be at least 20 feet from an adjoining property line, 25 feet from a public street, and 15 feet from any building or structure. It required operators of existing mobile home parks to obtain a license within 30 days and provided that if a park was in violation of any of the regulations a special license rather than a regular license would be issued listing the violation thereon; that the violations should be corrected prior to January 1 of the succeeding year, and if they were not, a special license would be issued for the following year, but no new tenants or mobile homes would be allowed to occupy any space until such time as all violations were corrected. At the expiration of the second renewal of the special license the township committee was empowered to revoke or refuse to issue a license or to order any restrictions deemed appropriate, following notice to the licensee and a hearing. The ordinance also required the park owners to keep a register containing the names of its tenants or mobile home owners, the number of mobile home spaces occupied, and to deliver a copy thereof to the township clerk quarter-annually.

Plaintiffs brought an action in lieu of prerogative writs challenging the validity of the ordinance on grounds that (1) the fees charged constituted double taxation of real property and were arbitrary and excessive; (2) it unlawfully revoked prior licenses; (3) it failed to provide for a proper hearing on alleged violations; (4) it was unlawfully retrospective and resulted in the confiscation of their property; (5) it invalidly attempted to repeal an existing zoning ordinance, and (6) it violated the provisions of N. J. S. A. 40 :52-2. The trial court held that the ordinance was valid and entered judgment in favor of defendant township. This appeal followed.

Plaintiffs first claim that section 7(b) (4) and section 8 (incorporating by reference the provisions of chapter IX of the State Sanitary Code relating to mobile home parks), which established spacing requirements for mobile home parks, were invalid because they conflicted with a revision of the State Code that became effective after the judgment was entered in this case, and that the revision was controlling. We do not agree. When the ordinance was adopted on March 20, 1968 the spacing requirements provided for in section 7 (b) (4) and the State Code were substantially the same. When the State Code was revised, effective September 1, 1968, a “grandfather clause” relaxed the spacing requirements for existing mobile home parks and provided that they would apply only to parks constructed after the date of the revision. However, the enabling act under which the State Code was adopted, N. J. S. A. 26 :1A-9, authorized local boards of health to adopt more restrictive regulations than those set forth in the State Code so long as they were not in conflict therewith. While the ordinance here challenged was not adopted by the local board of health, the South Brunswick township governing body bad the power to adopt regulations for mobile home parks. N. J. S. A. 40:52-1(d), and see Zullo v. Board of Health of Woodbridge Township, 9 N. J. 431 (1952). The spacing requirements set forth in the ordinance are more restrictive and were in effect before the State Code was revised. We see no conflict with the State Code which would invalidate the spacing regulations.

The park owners allege that the spacing requirements of the ordinance will reduce the number of mobile home spaces in their parks, resulting in a pecuniary loss. They argue that this provision of the ordinance is unconstitutionally retrospective because it deprives them of vested rights. We are satisfied that plaintiffs acquired no vested rights to continue the operation of their parks without compliance with the spacing requirements. Under N. J. S. A. 40:52-1 the business of operating mobile home parks is subject to regulation under the police power of the municipality, and. ordinances adopted pursuant to such powers are valid even though they curtail or restrict the use of private property. Gilman v. Newark, 73 N. J. Super. 562, 599-600 (Law Div. 1962). Plaintiffs acquired no immunity from the exercise of the police power because prior to the adoption of the ordinance their parks may have been in conformity with the then applicable ordinance. Ibid. We hold that the ordinance is not unconstitutionally retrospective.

Plaintiffs argue that the township improperly revoked their licenses by the adoption of the amended ordinance. The evidence shows that the $100 fees called for by the preexisting ordinance were paid by plaintiffs prior to September 1, 1967. However, the township never issued the licenses due to the existence of health and safety violations in the parks as well as because it was conducting a study of proposed changes in the ordinance. Defendant held the money in escrow pending the outcome of the trial below. The trial court ordered that the money paid be credited against the license fees called for by the amended ordinance. We agree with the ruling of the trial court. Since the licenses were never issued in 1967, plaintiffs5 claim that they were improperly revoked is without substance.

It is next argued that the ordinance invalidly fails to provide for a hearing upon the issuance of a special license, and the park owners must run the risk of being subject to violating the ordinance for a two-year period and are prohibited from a replacement of tenants without any redress of grievances. The spacing requirements of the ordinance are precisely spelled out. Mobile home parks are either in compliance with or in violation of such requirements, and no hearing is necessary to make such a determination. Under the special licensing provisions the licensee is required to pay the charges for spaces which are violative of the terms of the ordinance. Once the violation has been corrected the space may again be utilized. Economic coercion is an effective method of encouraging prompt remedial action by the licensee The fact that the licensee would undergo pecuniary expense if the ordinance is enforced does not render it invalid. Gilman v. Newark, supra, at p. 585; 6 McQuillin, Municipal Corporations, § 20.09; Dennis v. Village of Tonka Bay, 156 F. 2d 672, 674 (8 Cir. 1946). The ordinance provides for a public hearing -when a park owner’s license is in danger of being revoked. This is sufficient to meet the requirements of a hearing provided for under N. J. S. A. 40:52-2.

It is contended that the monthly license fee based upon a graduated classification of mobile home spaces is invalid because (1) it is a tax on an essential part of the business for which a tax in the form of an annual license fee must also be paid, and (2) it is imposed on mobile home spaces without regard to whether they are occupied or not and therefore constitutes an invalid tax on real property, contrary to N. J. Const., Art. VIII, § I, par. 1, which requires that property be assessed for taxation under general laws and uniform rules. But this constitutional prescription does not apply to the legislative power of indirect taxation upon privileges, franchises, trades and occupations by exacting license fees for the privilege of transacting business, though such power be exercised for revenue purposes. Johnson v. Borough of Asbury Park, 58 N. J. L. 604, 608 (Sup. Ct. 1895). Thus, an ordinance licensing and regulating trailer campsites and imposing a license fee of $200 a year and $1 a week per trailer for revenue purposes has been held valid. Edwards v. Mayor, etc., of Moonachie, 3 N. J. 17 (1949). Moreover, the fact that some of the fees imposed under the ordinance in the instant case are graduated on a square-foot basis of a mobile home space does not per se render it illegal. Belleville Chamber of Commerce v. Town of Belleville, 51 N. J. 153, 157 (1968). And a blanket fee against each trailer space in a trailer park has been upheld in the absence of proof that the fee was unreasonable or confiscatory. Michaels v. Pemberton Tp. Committee, 3 N. J. Super. 523, 527 (Law Div. 1949). The power to license and regulate under the police power, and the power to raise revenue under the general power to tax, may be “unitedly exercised.” Bellington v. East Windsor Tp., 17 N. J. 558, 565 (1955). We hold that the monthly fees imposed on the mobile home spaces are valid and that the imposition thereof does not constitute double taxation of real property.

Plaintiffs also complain that the license fees imposed under the ordinance do not bear a reasonable relationship to the additional impact, if any, upon the township, and that the revenue from the licenses will be improperly used to defray the general costs of government. The primary purpose of the Legislature in enacting N. J. S. A. 40:52—1 and 40 :52—2 was to authorize municipalities to license and regulate, as police measures for the public health, safety, morals or welfare, the local business described in the statute, and only incidentally to impose upon the businesses thus licensed and regulated license fees for revenue which may, within reasonable limits, exceed the regulatory costs. Salomon v. Jersey City, 12 N. J. 379, 390 (1958). The amount of the license fee imposed rests in the sound discretion of the governing body, and judicial interposition is not warranted unless the tax is prohibitory and unreasonable. There is a presumption that the fee is reasonable in amount, and the burden rests upon the challenger to overthrow the presumption. The inquiry is whether the exaction of the license fee bears a reasonable relation to the value of the privilege conferred. Edwards v. Mayor, etc., of Moonachie, supra, at p. 26.

In Bellington v. East Windsor Tp., supra, a trailer camp licensing case, the court said:

“The quantum of the fee of necessity depends upon the nature and circumstances of the regulated category. The tax concept may be expressed in terms of the duty of the sharers of the benefits of government to bear its burdens equitable and justly. Trailer camps are peopled in great part by transients who use and enjoy the community’s services and facilities without sharing the cost; and the inclusion in the license fee of a tax designed in some measure to equalize the common burden is within the statutory tax for revenue as an incident of the police regulatory power, (at p. 567)

In the instant ease most of the testimony during the trial was directed to the question of whether the license fees imposed bore a reasonable relationship to the municipal expenses relating to the mobile home parks. We deem it unnecessary to detail herein the evidence presented by the parties. The trial court found that the revenue realized from the license fees imposed on the mobile home parks was reasonably related to the municipal expense associated with the parks, and that such fees were not confiscatory. We have carefully examined the record and conclude that plaintiffs failed to sustain the burden of proving that the license fees were unreasonable and confiscatory. We concur in the findings of the trial court.

Plaintiffs also argue that the spacing requirements of the ordinance invalidly repeal a zoning ordinance adopted by the township in 1967. We do not agree. The zoning ordinance provides that all plans for the expansion of existing mobile home parks shall require the same width, depth and area as set forth in the present ordinance, and that such plans shall include plans for the phasing out of nonconforming uses. Regulatory and zoning ordinances are both applications of police power. Howell Tp. v. Sagorodny, 46 N. J. Super. 182, 192 (App. Div. 1957), affirmed 25 N. J. 502 (1958). Their functions are interrelated and must be construed in harmony with each other. Napierkowski v. Gloucester Tp., 29 N. J. 481, 485 (1959). Here the zoning ordinance is concerned with the future expansion of mobile home parks and the eventual elimination of substandard spaces. The licensing ordinance is concerned with the regulation of existing parks to bring current uses up to specified minimum standards. We conclude that the two ordinances are not in conflict and that the licensing ordinance does not repeal the zoning ordinance.

Finally, plaintiffs contend that the special licensing provisions of the ordinance are unreasonable and that the registration requirements placed upon them deprive them of equal protection of the laws. We disagree. The special license provisions give plaintiffs ample opportunity to correct violations of the ordinance without fear of revocation. The registration requirements are a reasonable method to enforce the special licensing provisions of the ordinance. The judgment is affirmed.


author: Per Curiam.

text:
    THOMAS J. POWELL, SR., ETC., PLAINTIFFS-RESPONDENTS, v. GENERAL MOTORS CORPORATION, ET AL., DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey-Appellate Division
    Submitted August 22, 1969
    Decided September 12, 1969.

      Before Judes Coneobd, Lewis and Leonabd.

      Messrs. Carpenter, Bennett & Morrissey and Wilentz, Goldman & Spitzer, attorneys for movants-defendants.

      Messrs. Seaman and Clark, attorneys for plaintiffs-respondents.
   Per Curiam.

This is a motion for leave to appeal from the denial of a motion to try separately the issues of liability and damages in a consolidated action involving fonr original suits. Pursuant to advance notice to the parties appearing on the motion that we might adopt this course, we axe, in the interests of expedition, granting leave to appeal, considering the merits of the appeal, and reversing.

The several suits arise out of an automobile accident in which one vehicle struck another in the rear while the first ear was allegedly drag-racing with a third vehicle. The following suits evolved: (1) by the estate of the deceased passenger in the first ear against all three drivers. All defendants cross-claim against each other and one seeks indemnity against the others; (3) by the passenger in the second car against all three drivers and the owner of the first car. Here, again, there are cross-claims and a claim for indemnity by one of the drivers; (3) by the driver of the first car against the driver of the second car. The defendant brings a third-party action therein against the driver of the third car; (4) by the driver of the second car against the manufacturer and retailer of that car, for defects in the car, and consequent breach of warranty and strict liability in tort, as well as against the drivers of the first and third cars. In this action, all defendants assert cross-claims for contribution against each other, and the defendant manufacturer seeks indemnity against its co-defendants.

At the pretrial conference in this matter defendant manufacturer and retailer in the fourth action moved, pursuant to R. R. 4:43-3 (b), for separate trials with respect to liability and damages. After argument by many counsel in which there was no reference to a memorandum respecting “split” trials on liability and damages, issued March 4, 1966 by the Administrative Director of the Courts at the request of the Supreme Court, the motion was denied. The judge stated: «* * * personally in my experience I don’t like the idea of splitting up a case. It leads to too many complications. I favor the idea of going right through this case as to liability and damages. * * *”

Defendants promptly moved for reconsideration, calling the judge’s attention to the memorandum aforesaid which reads, in pertinent part:

MEMORANDUM TO : ASSIGNMENT JUDGES
RE: Ways and Means of Expediting the Calendars
1. Separate Trials of Liability and Damages: The Supreme Court desires that pursuant to Rule 4:43-2 the issue of liability be tried separately in all cases in which there are 3 or more parties with separate interests contesting liability. The Court likewise wants to encourage judges to utilize the rule and try the issue of liability first in any other cases where they feel it may expedite the disposition of the case, (emphasis in memorandum)

After another oral hearing, the judge again denied the motion. Referring to the memorandum, he said: “Yes, I’m familiar with the March 4, 1966 ruling from the Administrative Office. I gave you my impression. I don’t think it works. I think the Supreme Court knows it because if they thought it worked, they would have made it a rule in ’68 and ’69.”

The memorandum in question has never been abrogated by the Supreme Court, and the Administrative Office of the Courts advises us it is still in effect.

We think the trial judge either erred or exercised his discretion mistakenly in denying the motion.

R. R. 4:43-2 (b) reads:

Whenever multiple parties, issues or claims are presented in individual or consolidated actions and the nature of the action or actions is such that, in the judgment of the court, a jury trial of all issues as to liability and damages would be complex and confusing, or whenever the court shall find that a substantial saving of time would result from trial of the issue of liability in the first instance, an order may, in an appropriate case, be entered on the court’s own motion or on motion of a party limiting the trial in the first instance to the issue of liability alone.

The rule is substantially readopted as R. 4:38-2 (b) effective September 8, 1969.

The remarks of the trial judge eyince: (a) he has a fixed opinion that “split trials” are generally of no value; (b) he believes the policy memorandum of the Supreme Court no longer represents the views of that tribunal. We think (a) is irrelevant to the proper exercise of the discretionary function enjoined by the practice rule and that (b) is a mistaken assumption.

The practice rule contemplates, on its face, a bona-fide consideration by the judge as to whether the facts and circumstances of the particular case meet the stated criteria for a separate trial of liability. The judge did not make that analysis here but instead applied his previously formed personal opinion against use of the rule.

Further, there is no basis for the assumption that the 1966 memorandum is no longer operative. Inquiry of the Administrative Office of the Courts would have clarified the matter. The fact that the memorandum has not been given the mandatory force of a rule of court in the later revisions of the rules does not derogate from the status of the memorandum as a deliberate statement of Supreme Court policy in respect of application of the rule, having as much weight as if set forth in a judicial opinion of that court. It is generally to be followed by the trial courts, saving extraordinary circumstances in a particular case, not within the contemplation of the memorandum, and justifiably calling for a single trial. No such extraordinary circumstances appear here. Indeed, on the contrary, the situation seems to us highly typical of the case which both the rule and the memorandum envisage as appropriately calling for a separate preliminary trial of the issues of liability.

Reversed.


text:
    BERNARD KICZALES, PLAINTIFF-APPELLANT, v. JUNE STRELECKI, DIRECTOR OF THE DIVISION OF MOTOR VEHICLES, DEPARTMENT OF LAW AND PUBLIC SAFETY OF NEW JERSEY, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued September 8, 1969
    Decided September 18, 1969.

      Before Judges Conford, Collester and Kolovsky.

      Mr. Mahlon L. Fast argued the cause for appellant (Messrs. Fast & Fast, attorneys).

      Mr. James 8. Gramer argued the cause for respondent (Messrs. Lamb, Blake, Hutchinson & Dunne, attorneys).
   Per Curiam.

This is an appeal from the decision of the Law Division that a resident of New York is not a qualified person to have recourse in this State against the Unsatisfied Claim and Judgment Fund on a claim arising out of a “hit and run” incident wherein there was no physical contact between the other car and the claimant’s person or the vehicle in which he was riding. Kiczales v. Strelecki, 103 N. J. Super. 257 (Law Div. 1968).

We are in agreement with the Law Division that the statutory requirement of a reciprocal remedy for New Jersey residents by the state of the claimant’s residence, N. J. S. A. 39:6-62, is not here met since New York, whose statute requires physical contact in a “hit and run” case, would consequently not afford a New Jersey resident relief under its comparable statute on the same facts as here involved. See Betz v. Director of Div. of Motor Vehicles, 27 N. J. 324, 330 (1958).

Affirmed.


author: Conford, S. J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT v. ROBERT MARS, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued September 8, 1969
    Decided September 18, 1969.

      Before Judges Conford, Collester and Kolovsky.

      Mrs. Susan T. Sinins, Assistant Deputy Public Defender, argued the cause for appellant (Mr. Stanley G. Van Ness, Public Defender, attorney).

      Mr. Richard M. Altman, Assistant Prosecutor, argued the cause for respondent (Mr. Joseph P. Lordi, Essex County Prosecutor, attorney).
   The opinion of the court was delivered by

Conford, S. J. A. D.

Defendant was convicted as one of two robbers who held up an A. & P. store in Newark. Three employees of the store identified defendant at trial as one of the culprits. The State also offered evidence of separate pretrial identifications of defendant by two of the employees at the police station about a week after the crime.

On objection by defendant to the testimony as to the out-of-court identifications as being unfairly suggestive, the court conducted three hearings out of the presence of the jury, one with respect to the testimony of each of the two employees, and one as to the confirmatory testimony of Newark Police Detective Lucarella. After each hearing the court found the circumstances of the out-of-court identification involved not to be unfair, and the witness then substantially repeated his testimony before the jury.

There was no objection by defendant at trial to the ineourt identifications as “tainted” by the out-of-court confrontations between defendant and the identifying witnesses. See United States v. Wade, 388 U. S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967). Consequently no hearing was had or findings made on such an issue at trial.

On this appeal defendant argues both that the preliminary trial court determinations as to fairness of the out-of-court identifications were mistaken and that the in-conrt identifications were tainted by the circumstances as to the former, i. e., that the identifications in court were not shown by the State to have been based upon observations of the suspect other than those at the out-of-court confrontation. Wade, supra (388 U. S., at 240, 87 S. Ct. 1926).

We observe, preliminarily, that defendant should be required, in accordance with ordinary practice, to have laid a basis at trial for an appellate argument of taint under Wade, absent plain error, which we do not find here. He did not do so, as already noted.

The argument that the out-of-court identifications were made under impermissibly suggestive circumstances is based, primarily, on the fact that the witnesses were permitted to see the suspect alone in a room at the police station (or with only a white detective, defendant and the culprits being Negro). The witness was not observable by the subject. Defendant also stresses that the detective told each of the identifying witnesses before the identification that he “thought he might have the man,” or words to that effect.

We consider that the criterion laid down by the United States Supreme Court for invalidating unfairness of use of photographs in out-of-court identifications, in Simmons v. United States, 390 U. S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247 (1968), is fairly applicable to invalidating unfairness, generally, in-out-of-court identification procedures. This is: “if the * * * identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” See also State v. Matlack, 49 N. J. 491, 498 (1967); Stovall v. Denno, 388 U. S. 293, 302, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967), both stressing the need for consideration of the totality of the surrounding circumstances.

Judged by these criteria, we find no basis for disturbing the trial judge’s finding of validity of the out-of-court identification procedures here employed. While the' circumstances relied on by defendant tend toward the possibility of undue suggestibility as indicated in Wade and Stovall, supra, see also State v. Woodard, 102 N. J. Super. 419 (App. Div. 1968), certif. den. 53 N. J. 64 (1968), there are the countervailing circumstances stressed by the trial judge that the witnesses had previously, seen and failed to'make identification from many photographs of suspects shown them as well as of other live suspects exhibited to them.

Strengthening the reliability of witness Bassett’s identification is the fact that when shown various photographs he made a tentative identification from one, but reserved final judgment until he could see defendant in person.

Our review function is to decide whether, considering the evidence as a whole, the trial judge could reasonably conclude that the identification procedure withstood attack under the Simmons and Matlack criteria discussed above. We find that he could.

Defendant also challenges the denial of his motion for mistrial after Detective Lucarella testified, before the jury, that Bassett had made a tentative out-of-court identification of defendant from a police gallery which Lucarella had previously said consisted of police photographs of men with prior records. We hold that defendant made his objection on this point at trial far too late. The questioned testimony before the jury was a repetition of testimony to the same effect previously given by Lucarella at the hearing out of the'presence of the jury (partly on cross-examination). Defendant should therefore reasonably have anticipated it would be adduced again during trial before the jury. Yet he made no objection when Lucarella was asked to, and did, describe the contents of the police gallery before the jury. Only when the witness got to the matter of the tentative identification of defendant did the defendant object and later move for mistrial. Had timely objection been made, the court might have been in a position to make a protective ruling to avert any undue prejudice. In any event, we find no substantial prejudice in the incident. R. R. 1:5-1 (a), (b). (revised but substantially to same effect. R. 2:10-2).

Judgment affirmed.

       Correet practice would appear to call for adducing the testimony of all witnesses on both sides as to any particular identification at one time, with a single determination by the judge thereon as to absence of invalidating unfairness.


text:
    FRANCIS B. McMENAMIN AND ROSE M. McMENAMIN, HIS WIFE, PLAINTIFFS-RESPONDENTS, v. EVESHAM MUNICIPAL UTILITIES AUTHORITY, A PUBLIC BODY CORPORATE AND POLITIC UNDER N. J. S. A. 14B-4, 5 AND 6, IN THE TOWNSHIP OF EVESHAM, BURLINGTON COUNTY, NEW JERSEY, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued September 8, 1969
    Decided September 23, 1969.
    Before Judges Sullivan, Carton and Halrern.

      Mr. William B. Colsey III argued the cause for appellant (Messrs. Powell and Davis, attorneys).

      Mr. Joseph S. Georgiana argued the cause for respondents (Messrs. Capehart and Scatchard, attorneys).
   Per Curiam.

The judgment herein is affirmed for the reasons stated by Judge Wick in the Chancery Division, 104 N. J. Super. 161 (1969).


text:
    JOHN MAYO, PLAINTIFF-APPELLANT, v. CITY NATIONAL BANK AND TRUST COMPANY, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued September 15, 1969
    Decided September 22, 1969.
    Before Judges Goldmann, Lewis and Matthews.

      Mr. Kent A. Losche argued the cause for appellant (Messrs. Losche & Losche, attorneys).

      Mr. David B. Rudd argued the cause for respondent (Messers. Raff and Scheider, attorneys).
   Per Curiam.

The judgment is affirmed substantially for the reasons expressed in Judge Lora’s reported opinion, 103 N. J. Super. 227.


text:
    JOAN RUTH PRESTON, PLAINTIFF, v. WILLARD M. PRESTON, DEFENDANT.
    Superior Court of New Jersey . Chancery Division
    Argued September 12, 1969
    Decided September 15, 1969.

      Mr. Harold M. Savage argued the cause for plaintiff.

      Mr. J. Allan Drummond argued the cause for defendant (Drummond and Owren, attorneys).
   Consodine, J. C. C.

(temporarily assigned). Attorneys have supplanted attorneys who have replaced attorneys in a morass of procedural and professional inadequacies that leaves the Court in this supplemental phase of a matrimonial matter with attorneys of record who apparently are not and attorneys not of record who apparently are.

Litigation in our Courts is handled by attorneys licensed in this State or by litigants appearing pro se. (R. 1:21—1). Necessarily the attorney becomes of record. (R. 1:4r-l(b)). He is then available to the Court for notice on matters arising in the case (R. 4:25-1), and to his adversary for service of papers required under our rules. (R. 1:5—1).

Withdrawal or substitution of attorneys is provided for in our rules (R. 1:11-2). The content of the rule in no way impinges on the necessity of having a counsel of record. See also: R. R. 1:12-74.

It follows that:

1. There can be no substitution in blank form made available to a now former client.

2. There can be no substitution to the former client by name unless the client now is to appear pro se.

3. An attorney cannot withdraw from bis representation of a client except in accordance with B. 1:11—2 and 3.

The Court and adversary counsel cannot be left bereft of a counsel of record in any litigation. Generally, see: R. 1:14, Canon 44, Canons of Professional Ethics, and Jacobs v. Pendel, 98 N. J. Super. 252 (App. Div. 1967).

Enter order recognizing present counsel as counsel of record.


author: Handler, J. S. C.

text:
    MEDIVOX PRODUCTIONS, INC., PLAINTIFF, v. HOFFMANN-LaROCHE, INC., DEFENDANT.
    Superior Court of New Jersey Daw Division
    Decided July 25, 1969.

      Mr. Robert P. Gorman for plaintiff (Messrs. Clapp & Risenberg, attorneys).

      Mr. Richard M. Goldman for defendant (Messrs. Siein, Bliablias and Goldman, attorneys).
   Handler, J. S. C.

Medivox Productions, Inc (hereinafter Medivox) entered into a contract on May 28, 1964 with defendant Hoffmann-LaRoche, Inc. (hereinafter Roche) for the production of a series of radio programs called “Milestones of Medicine.” Medivox is a New York corporation whose principals are John Scott, a well-known broadcaster for New York radio station WOR, Edythe Scott, his wife, and Howard Greene. Roche is a leading manufacturer and distributor of pharmaceutical products. This was a promotional contract calling for 260 radio programs involving short dramatic episodes based on events in medical history, narrated by John Scott and broadcast by radio stations throughout the country on a daily basis; the programs, each with a “credit line” mentioning Roche, were to enhance in the public mind the image of persons and institutions connected with health and to underscore the importance of drugs. Scripts prepared by Medivox were to be submitted to Roche for its review and approval prior to broadcast. Medivox agreed to obtain radio stations to carry the program in designated retail drug marketing areas or cities throughout the country and guaranteed a specified amount of air-time.

The basic contract price was $140,000, to be paid in periodic installments over a period of one year. The broadcasts were initiated on June 22, 1964. On November 25, 1964, seven months before the end of the term, after Medivox had produced approximately 135 programs, Roche terminated the agreement. At this time it had paid Medivox $63,000 under the contract.

Medivox claims that it was performing in accordance with the terms of the contract and that Roche wrongfully terminated. It sues for the balance due as well as other consequential damages. Roche counters that in several respects Medivox was not fulfilling its obligations under the contract and that it was entitled to repudiate. By way of further defenses and counterclaim for rescission and restitution, it asserts that Medivox committed fraudulent misrepresentations during both the negotiation and performance of the contract.

I

Roche claims that by November 25, 1964 Medivox had fallen so far short in terms of radio station coverage that it had materially breached the contract. The provisions of the contract which govern the obligations of the parties with respect to coverage are set forth in section 4, viz:

Scope of Rroodcasi-Medivox will make appropriate arrangements with radio stations and deliver such series of programs for broadcast on the basis, wherever possible, of one broadcast per day, five days per week, 52 weeks per year for a total of 260 programs per year on an exclusive broadcast basis with only one radio station in each of the designated marketing areas (as defined below) in the United States; this however shall not imply that a radio station shall be obtained in every designated marketing area.
Where a broadcast schedule as set forth above is not possible to arrange with a particular radio station, some other broadcast schedule may be followed.
The designated marketing areas shall consist of those top 200 cities and/or marketing areas in the United States selected on the dollar volume of retail drug sales encompassing approximately $6,000,000,000 or 73% of the national total as based on figures published in Standard Rate and Bata Service, Inc. Spot Radio Rate and Bata.
However, in those instances where broadcast areas as defined above overlap, the overlapped cities and/or marketing areas shall be considered a single unit and the list of cities and/or marketing areas as defined herein shall be extended by the same number of cities and/or marketing areas excluded in this manner so as to maintain a constant list of top 200 cities and/or marketing areas. * * *

There is a further provision in section 6 which states:

Medivox guarantees to Roche broadcast time during the year of one and one-half times the basic cost price of One Hundred Forty Thousand Dollars ($140,000.). For the purposes of this contract the value of the broadcast time of each program consisting of three minutes, forty-five seconds of editorial time that will actually be broadcast shall be based tipon and equal to the prime one minute, one time spot rate of each station broadcasting ‘Milestones of Medicine’ as listed by the latest available Standard Bate and Data Servioe, Inc. Spot Radio Rate and Data and the Value of the total broadcast time shall be tills figure times the number of broadcasts. In the event the broadcast time as above defined shall not be achieved, with appropriate adjustment, if any, for the medically significant areas referred to in paragraph 4, the cost to Roche shall be reduced in the same percentage proportion, and the obligation to Roche hereunder shall be on such reduced and prorated charge.

The written words of the contract define the parameters within which the understanding of the parties must be found.

While it is to be appreciated that the cardinal rule in the interpretation of contracts is to ascertain and effectuate the common intention of the parties, yet where the parties liave composed a written memorial of iheir bargain, the intent that controls is that expressed or apparent in the writing. The parties are normally bound by the language employed regardless of some different intent or divergent understanding entertained by either party. Moscowitz v. Middlesex Borough B. & L. Ass’n, 18 N. J. Super. 182, 186 (App. Div. 1952).

Each party espouses a variant construction of these contract provisions based upon its own conception of their common intention. Medivox urges that paragraph 4 only prescribes the markets within which it had to solicit stations and not, as contended by Soche, a numerical guarantee of stations or markets.

Paragraph 4 on its face does not crystalize an affirmative duty on the part of Medivox to obtain a radio station in each of the designated, marketing areas or to obtain any particular number of radio stations. The language, however, is not felicitous in defining this aspect of coverage. The duties which it apparently imposed on Medivox are to “make appropriate arrangements with radio stations” and to “deliver” the programs “on an exclusive broadcast basis with only one radio station in each of the designated marketing areas”. The “appropriate arrangements” to which reference is made are “whenever possible, one broadcast per day, 5 days per week, 52 weeks per year for a total of 260 programs per year”; if such a broadcast schedule is “not possible to arrange with a particular radio station, some other broadcast schedule may be followed.” The duty to “deliver such series of programs” entails furnishing these to only one radio station in a single marketing area on an exclusive basis. Any inference otherwise generated by this language that it raises a positive duty to secure a radio station in every one of the designated marketing areas is effectively negated by the concluding sentence of the first paragraph of section 4.

To the extent that there is any latent ambiguity in the contract, there may be examination of relevant circumstances as well as the objects and purposes of the parties in order to fix more precisely the meaning of what was expressed in the written contract. Atlantic Northern Airlines, Inc. v. Schwimmer, 12 N. J. 293 (1953); Garden State Plaza Corp. v. S. S. Kresge Co., 78 N. J. Super. 485 (App. Div. 1963), certif. den. 40 N. J. 226 (1963). Extrinsic evidence to this end was offered freely by both parties; however, it does not support the conclusion pressed by Roche that the intention of paragraph 4 was to obligate Medivox to place the programs in all of the 200 designated markets or that Medivox was to secure any particular number of markets.

The negotiations which eventuated in the written contract were incepted at a meeting on May 13, 1964 at which there were present the tlyee principals of Medivox and various representatives of Roche, including Dr. Yirginius Mattia, at present the president of Roche but then the vice-president for marketing for all of the commercial divisions of Roche; William Enes, then general manager in charge of sales, marketing, advertising and promotion of Roche Laboratories, and Alfred Zobel, then director of public relations of Roche and its various divisions. Considerable time was spent discussing Medivox’s proposal with respect to coverage and syndication. This would entail the solicitation by Medivox of the ranking radio stations in each of the top 200 retail drug sales marketing areas. Medivox mentioned that a considerable number of stations had been broached and that numerous “commitments of interest” had been received. It was further explained that the marketing areas were selected in order to assure Roche, as a manufacturer of pharmaceuticals, meaningful coverage in areas where the program with Roche’s name would have a maximum impact and benefit. It was not represented to Roche, however, that Medivox would obtain a radio station in each of the marketing areas, that is, 200 radio stations.

Medivox also explained its guarantee of broadcast time and the method by which it would be computed. It offered to guarantee Roche broadcast time worth iy2 times the basic contract price, to be computed by a formula and, according to Medivox, the guarantee of broadcast time as proposed was preferable to a numerical guarantee of radio stations selected indiscriminately without regard to the type of audience to be reached.

The final contract was drafted and executed on May 28, 1964. The particular provisions for coverage went through a painstaking evolution. In an ini tal draft prepared by Medivox, it merely stated in general terms that the programs would be broadcast by stations throughout the country with no reference to any number of stations or marketing areas. In a subsequent draft prepared by Roche it was provided that Medivox would obtain a station “[i]n each of these 200 marketing areas.” This provision, however, was changed radically in the final draft. In the executed contract, as noted, this provision dispelled any obligation to secure a particular number of stations.

The final contract reflects the common understanding ultimately reached by the parties. While Roche did during the course of negotiations desire that a specified number of radio stations be obtained by Medivox to carry the program, it capitulated to Medivox’s suggestion that there be no minimum numerical guarantee and that Medivox need not obtain a radio station in each of the 200 designated marketing areas.

Medivox’s performance with respect to syndicating the programs cannot be considered deficient either in terms of the contract itself or even as measured against Roche’s expectations of a numerical and percentage guarantee of stations and markets. Medivox had contracted with approximately 133 stations by the end of November 1964. At least 120 of these stations were, in fact, carrying “Milestones of Medicine” on a daily basis for 13-week periods. It had thus subscribed more than 50% of the stations in the top 200 marketing areas. Most of these radio stations were ranked 1, 2, or 3 in their particular areas. In terms of percentage of coverage these stations represented 25.5% of the national total of retail drug sales, more than 1/3 of 73% of the markets. Actual broadcast time achieved was $86,899, figured very conservatively on the basis of only 101 stations. This actual broadcast time was between 1/3 and 1/2 of the total broadcast time of $210.000 which Medivox had guaranteed. By the end of November 1964 the contract term itself was between 1/3 and 1/2 over, with still seven months to run. In view of all these circumstances, and against any measure of performance, it cannot be concluded that Medivox was guilty of a material breach of contract with respect to its efforts to syndicate the program.

II

Roche asserts that Medivox was in breach of its contract because of the poor quality of scripts. The validity of Roche’s repudiation should be approached in terms of whether it had reserved expressly or impliedly a contractual power to be the final arbiter as to the quality of scripts. If Roche had reserved the ultimate right to be satisfied with scripts, the validity of its termination can be determined by the genuineness—not the reasonableness—of its dissatisfaction.

It is clear that there was no express contractual right to terminate the agreement, nor can such- a right be implied. If, however, during the course of performance one party fails to perform “essential obligations under the contract,” he may be considered to have committed a material breach and the other party may elect to terminate. See, Frank Stamato & Co. v. Lodi, 4 N. J. 14, 21 (1950). Where a contract calls for a series of acts over a long term, a material breach may arise upon a single occurrence or consistent recurrences which tend to “defeat the purpose of the contract.” Winfield, etc., Corp. v. Middlesex, etc., Corp., 39 N. J. Super. 92, 102 (App. Div. 1956). In applying the test of materiality to such contracts a court should evaluate “the ratio quantitatively which the breach bears to the contract as a whole, and secondly the degree of probability or improbability that such a breach will be repeated.” Maple Flock Co. v. Universal Furniture Products (1934) 1 KB 148, 157. See also, Restatement, Contracts, § 275, pp. 402-403 (1932).

In judging whether there was a material breach stemming from Roche’s dissatisfaction with the quality of scripts, it is necessary initially to ascertain the standard of performance required by the contract. The critical contract language is contained in the following provision:

Soche reserves the right to review and approve all programs prior to their release and delivery to stations for broadcasting. Roche agrees to promptly notify Medivox of their approval or disapproval in each instance. If notice of approval or disapproval has not been received by Medivox within 10 days from the delivery to Roche of the program for review, then it shall be deemed approved by Roche; provided, however, that during the first thirty (30) days of this agreement such notice of approval or disapproval shall be given to Medivox within five (5) days.

This provision does not in explicit terms provide that scripts were required to meet Roche’s satisfaction. Whether such an interpretation can fairly he imported depends in large measure upon an analysis of the written language itself in the context of all relevant surrounding circumstances. Atlantic Northern Airlines, Inc. v. Schwimmer, supra.

The right to review and approve necessarily includes the right to disapprove scripts. The contract does not purport to limit or curtail the exercise of this right. If such a qualification wore within the contemplation of the parties it might be expected that it would have been expressly set forth in light of the fact that a limitation of reasonableness was expressly included elsewhere in the contract with respect to Roche’s approval of a substitute narrator. The right of approval with respect to scripts was not hedged with a similar condition as to reasonableness. Against the backdrop of the parties’ own understanding, as evinced by their conduct during the course of performance as well as relevant custom and practice, this omission appears to be advertent and consistent with an intention not to qualify the approval of scripts by a reasonableness standard.

The conduct and discussions of the parties during the contract disclosed a mutual understanding that Roche had the right to reject scripts for any reason in the absence of bad faith. Scott testified that Roche had a duty to “cooperate” with Medivox based upon the credit line appearing at the end of each broadcast, viz:

“Milestones of Medicine” is prepared in cooperation with the research facilities of Roche Laboratories, Division of Hoffmann-LaRoehe, manufacturers of fine pharmaceuticals.

This credit line, however, does not establish an affirmative contractual duty to “cooperate.” In Mr. Scott’s words, Roche’s duty to cooperate required it to review scripts “conscientiously, sincerely, expeditiously and make determinations, even subjective, as to the satisfactoriness of scripts.” Roche did in fact cooperate fully with Medivox. It cannot be concluded that any putative duty on the part of Roche to cooperate tempered its right to be satisfied absolutely with the quality of scripts.

Roche’s pattern in evaluating scripts was not narrowed to any limited area. Roche acted upon the presumed right to review scripts and to reject them for any reason; and Medivox reacted in kind, acceding to this understanding, albeit disagreeing often heatedly with Roche’s particular judgments on individual scripts. The actual conduct and practical understanding of the parties exhibited in the performance of a contract may color its interpretation. Michaels v. Brookchester, 26 N. J. 379 (1958); Journeyman Barbers, etc., Local 687 v. Pollino, 22 N. J. 389 (1956). Here, the consistent actions of the parties sustains the view that Boche’s right to review and approve scripts in the contract was final and not intended to be qualified by a reasonableness standard.

Further light is shed upon the meaning to be accorded the extent of Boche’s right of review by the evidence proffered on relevant custom and usage. Performance to the sole and final satisfaction of another is not readily implied in the absence of plain language. Cf. Delhi Pipeline Corporation v. Lewis, Inc., 408 S. W. 2d 295 (Tex. Ct. Civ. App. 1966) (court refused to imply such standard in a building contract in absence of express terms). In appropriate situations, however, attending circumstances, including practices and custom, may serve to clarify the common intention of parties. Ace Stone, Inc. v. Wayne Township, 47 N. J. 431 (1966)). Custom may strongly indicate that performance is to be to the satisfaction of another especially with regard to a contract involving matters of taste, judgment or preference. Cf. Haven v. Russell, 34 N. Y. S. 292 (Sup. Ct. 1895).

Edythe Scott testified that in the advertising field it is recognized that the client has an absolute right to reject copy of advertising materials. In her words, “The client is boss.” Greene stated that in advertising generally a client has the right of approval or disapproval; if a client doesn’t like advertising matter, he has the right to send it back, subject to good faith, and this is also the practice in the general field of public relations. Messrs. Zobel and Lerner, who were directly responsible for Boche’s public relations and advertising, stated that Boche was “the client” and if it did not like or want a script, it had the right to reject it.

Thomas O’Brien, who was offered as an expert on behalf of Medivox, expressed the view that, even in the absence of an express provision, a right of review and approval as to each program would be evident from the very inclusion of a credit or tag line at the end of each program. He did state that Eoche’s right to review scripts had to be exercised reasonably, but indicated that this meant Eoche could not resort to “nitpicking.” This view was not inconsistent with the standard of review otherwise expressed that Eoche in rejecting scripts was limited only to the extent that it could not be arbitrary or act in bad faith.

None of the witnesses testified categorically that the custom or practice by which a client has the absolute right to reject advertising materials was specifically applicable to “Milestones of Medicine.” Such a practice or custom, nevertheless, does have a tangential bearing upon the interpretation of this contract. While “Milestones of Medicine” was not an advertising or marketing program in the sense of being geared to the sale of products, it was a promotional or public relations project. Promotion is closely related to the allied fields of advertising and marketing, and this relationship was recognized by the parties. Eor example, there were discussions of “cross-merchandising” the radio programs. This dimension of the program was also underscored by the fact that the persons in charge for Eoche were involved in promotion, sales, marketing and advertising.

In sum, the contract itself accords Eoche the right to review and approve scripts; it does not limit this right to approve scripts by any standard of reasonableness or other objective criteria. The practical understanding of the parties was that the contract reposed final judgment with respect to quality and worth of scripts in Eoche. Furthermore, the program was a promotional one with commercial overtones and closely related to advertising and marketing where clients or sponsors, by virtue of custom, trade and usage, enjoy the unqualified right to be satisfied. It is to be concluded, therefore, that Eoche did have the right to reject scripts for any reason whatsoever, absent bad faith. In essence, the contract between the parties was a satisfaction contract whereby Medivox obligated itself to produce scripts which would be satisfactory to Eoche.

In Haven v. Russell, supra, at 293, the court articulated the applicable principles regarding the performance of a satisfaction contract:

® * * Where a contract is made to gratify the taste, serve personal convenience, or satisfy individual preferences, to the satisfaction of the other parties to the agreement, the question of satisfaction is left entirely to the parties to be satisfied. * * *

This principle of contract law has been broadly recognized, viz:

Where the contract in which one party agrees to perform to the satisfaction of the other involves matters of fancy, taste, sensibility or judgment of the other party, such matters must reasonably be considered elements of predominant importance in the performance. In such contracts the party agreeing to perform to the satisfaction of the other party renders the other the sole judge of his satisfaction, and this ordinarily without regard to the justice or reasonableness of his decision, and a court or jury cannot say that such party should have been satisfied where he asserts that he is not. Where the approval involves an affair of individual judgment on which there can be no standard of reasonableness, there must be personal satisfaction. * * * 17A C. J. S. Contracts § 495, pp. 719-720 (1963).

The New Jersey understanding is in accord. See, e. g., Hayes v. Kluge, 86 N. J. L. 657 (E. & A. 1914). The controlling factor is not whether the promisee in a satisfaction contract ought to have been satisfied but whether, in fact, it was. Corn Products Refining Co. v. Fasola, 94 N. J. L. 181 (E. & A. 1920).

These legal principles guide the inquiry into the issue of the nature and extent of Roche’s dissatisfaction as well as the question of whether Medivox’s failure to satisfy Roche as to the quality of scripts, after it had produced 135 out of 260 programs and with seven months to go under the contract, constituted a material breach.

The extent of Roche’s dissatisfaction is not to be measured solely by the number of scripts rejected. Many scripts with which it was dissatisfied were approved by it reluctantly. Roche was obviously displeased with a substantial number of scripts. Roche’s dissatisfaction involved various aspects relating to the quality of the scripts but it focused especially upon factual accuracy and content. Section 2 of the contract in pertinent part provides:

Medivox will assure the factual accuracy of the program content and obtain appropriate releases when necessary. Medivox will hold Roche harmless against any and all liability, claims, damages, costs, and expenses, including counsel fees, which result or may result from any action in connection with the creation, distribution and broadcasting of the programs; however this provision shall not apply to any liability, claim, damage, cost or expense arising directly from any change in or addition to a program script made by Roche.

Roche asserts simply that this contractual provision obligated Medivox to produce scripts which were free of factual inaccuracy. Medivox does not disclaim this contractual responsibility but urges that the duty to assure factual accuracy was a joint one. It points again to the “credit line.” The credit line, however, in no way establishes a duty on the part of Roche to either provide factual accuracy or to detect inaccuracy; it was solely Medivox’s responsibility to assure factual accuracy.

Roche, prior to the final execution of the contract on May 28, 1964, advised Medivox that its standards for factual accuracy were extremely high. It explained that as a manufacturer of pharmaceuticals not' even the slightest degree of factual inaccuracy could be afforded, and that this was especially true in connection with a nationwide program dealing with medicine. Medivox knew that Roche was “cheeking every fact” and it recognized its own obligations with respect to the factual aspects of the program, including medical accuracy when it undertook to buttress its performance for accuracy by hiring two medical doctors and a researcher in early October 1964 for this very purpose. Moreover, there was expert opinion that the highest standards of accuracy would be necessary in a program relating to human health and life, and that a sponsor in the pharmaceutical industry could be expected to be much more zealous with respect to factual accuracy than would a sponsor in other fields not related to health where the risks of inaccuracies would not be of the same magnitude.

Medivox prior to the termination of its contract, had achieved an imperfect record with respect to factual accuracy. It was established that there were at least 15 errors which occurred in various scripts. An additional ten errors were disputed. If no qualitative distinction were drawn with respect to the type of errors, it could not be said that this total number of errors was de minimis. Medivox generally depreciates their gravity on the grounds that several were corrected before broadcast, some were not “broadcast errors”, i. e. not noticeable on listening to a radio broadcast, and others were miniscule or of only limited significance in the context of the programs. Some errors which involved medical and technical subjects might from a layman’s point of view be considered abstruse or picayune. Nevertheless, by professional standards, these errors would not be mere foibles. None of these errors, however, can be shrugged off. In the context of the program’s objectives of fostering a favorable impression of persons and institutions involved in the health field as well as the importance of drugs, and of affecting in the mind of the public an image of Roche as a responsible manufacturer of pharmaceuticals, factual inaccuracies regardless of degree would pose a serious threat to the program’s success. Under these circumstances, Roche’s dissatisfaction was patent and genuine.

Roche also stresses that its dissatisfaction with scripts extended to their content and quality as well as their tone and dramatic effects. The contract states only that Medivox was responsible for producing “a series of dramatic narratives based on true incidents in medical history * * * under the title ‘Milestones of Medicine’.” Roche contends that too many scripts were not “milestones” in that they involved either remote or insignificant events in medical history or failed to convey an appropriate impression in terms of the programs’ desiderata.

The content of scripts early became a bone of controversy between the parties. Medivox took the position that each individual script was not required or expected to be medically significant and that individual scripts which might be shy on medical significance but strong on drama and human interest could be interspersed throughout the series and thereby serve the promotional goals of the entire project. Medivox emphasizes that at the initial presentation meeting on May 13 Roche heard three such programs and that the broadcasts which were eventually produced were comparable to these demonstration programs. These three programs, however, could not foreshadow completely the content, style and tone of 260 programs yet to be produced. ISTor were they considered or accepted by Roche as the sole measure of the programs that would be developed. Roche was genuinely distressed with the content and what it considered a childish or sophomoric style of many of the scripts, and even felt that some disserved the cause of health. Its dissatisfaction with the quality of scripts was not arbitrary or in bad faith.

Roche further contends that Medivox failed to comply with its undertaking “to originate, create, prepare and produce” the “Milestones of Medicine” series. It was expected that Medivox would hire script writers who would extract from sources certain factual matters, such as medical events and technical procedures. Other aspects of the written scripts, including style, dramatic effects and the like, were expected to bear the stamp of the writer’s own skill. It was understood that these matters could not be “lifted” from the writing of others.

Eour scripts embraced too much material transposed directly from others. Other scripts in varying degrees had some words or phraseology apparently extracted verbatim from their sources. Roche, however, at no time became dissatisfied with scripts during the course of the contract because of “lifts” or their lack of originality. Its criticism of this aspect of Medivox’s performance was mounted after it had terminated the contract and the dispute between the parties moved into the arena of litigation. Considering the totality of the 175 scripts which eventually were produced, it cannot be concluded that Medivox had failed to meet its duty to produce original scripts or that Boche’s retrospective dissatisfaction on this score was genuine.

Medivox stresses that Boche’s remedy for unsatisfactory scripts consists in the rejection of scripts rather than termination. It finds itself, however, arguing in elliptical fashion that since Boche had the right to reject scripts it could as a practical matter "strangle the flow of programs and eventually make the completion by Medivox impossible * * * but [it could do so] only by rejection of scripts and not by termination of the contract.”

Dissatisfaction which occurs during the course of a contract calling for satisfactory performance over an extended period of time may justify termination by the promisee. Fursmidt v. Hotel Abbey Holding Corp., 10 A.D. 2d 447, 200 N.Y.S.2d 256 (App.Div. 1960); Schmand v. Jandorf, 175 Mich. 88, 140 N. W. 996 (Sup. Ct. 1913). In Ferris v. Polansky, 191 Md. 79, 85, 86, 59 A. 2d 749, 752 (Ct. App. 1948), the court stated:

‘‘In a contract where the employer agrees to employ another as long as the services are satisfactory, the employer has the right to terminate the contract and discharge the employee, whenever he, the employer, acting in good faith is actually dissatisfied with the employee’s work. This applies, even though the parties to the employment contract have stipulated that the contract shall be operative during a definite term, if it provides that the services are to be performed to the satisfaction of the employer.”

In the instant ease the contract required the production by Medivox of 360 separate scripts satisfactory to Boche over a period of one year. In this context it is appropriate to apply ordinary principles of material breach to determine whether Medivox’s failure to satisfy Boche with respect to numerous individual scripts after five months reached to the essence of the contract. Frank Stamato & Co. v. Lodi, and Winfield, etc., Corp. v. Middlesex, etc., Corp., supra. It is therefore proper to consider the extent to which scripts were unsatisfactory as well as the likelihood that Medivox’s performance of the remainder of the contract would have conformed with Roche’s expectations. Maple Flock Co. v. Universal Furniture Products, supra.

It cannot be said that Roche did not afford Medivox ample opportunity to produce scripts to its satisfaction in fulfillment of its obligation. Termination occurred five months after the inception of the contract. Medivox had prepared and submitted approximately 135 scripts—more than half the total required under the contract. By that time there was small likelihood that in the performance of the remainder of the contract Medivox would be able to furnish scripts whose quality would eventually please Roche or abate its existing dissatisfaction.

Roche’s dissatisfaction with scripts was not a belated reconstruction made after its decision to terminate; rather, dissatisfaction existed almost from the inception of the contract and was expressed constantly by letter, by memoranda, by telephone and at several personal meetings. Such dissatisfaction with the quality of scripts was in good faith and touched upon a substantial number of scripts. Roche, in sum, was genuinely dissatisfied with Medivox’s performance with respect to the quality and content of scripts and its dissatisfaction was “real and not pretended, capricious, mercenary, or the result of dishonest design.” Ferris v. Polanshy, supra, 59 A. 2d at 752. Medivox’ dereliction in failing to produce scripts satisfactory to Roche over a five-month period of time did defeat the essential purpose of the contract. Medivox, therefore, had committed a material breach of contract and Roche Avas entitled to terminate the agreement.

Ill

Roche charges Medivox with fraudulent misrepresentation and concealment during the negotiation as well as tile performance of the contract and asserts that on the basis of such fraud it was entitled to repudiate the contract and to recover damages on the basis of rescission and restitution. Medivox strenuously denies the charges of fraud.

Ordinarily, in actions at law fraud must be established by a preponderance of the evidence. Newark Live Poultry Co. v. Fauer, 118 N. J. L. 556 (Sup. Ct. 1937). In equity actions; sterner proofs have been required. In such actions proofs must be “clear and convincing”; they must “domonstrate a high probability * * * or a strong probability, or that it is much more probable than not, that there was fraud.” Post v. Gerson Bacher, Torrid K-9, Inc., 48 N. J. Super. 518, 521 (App. Div. 1958). As a practical matter, in a case where the same acts of fraud are urged as a basis for both a legal defense and equitable relief, the evaluation of proofs and the determination of facts should proceed initially upon the conventional standard of proof based upon a preponderance of the evidence; if under this measure fraud is not established, a further inquiry based upon a stricter standard of proof would be obviated.

Roche charges that Medivox fraudulently concealed that John Scott, the narrator of “Milestones of Medicine,” was restricted from broadcasting on any radio station other than WOR within a 50-mile radius of New York City, and that the policy of WOR prevented that station from broadcasting a program such as “Milestones of Medicine.” These facts, Roche asserts, were crucial in that they rendered it impossible to obtain a radio station to carry “Milestones of Medicine” in the New York marketing area which was the number one area for the retail sale of drugs in the United States.

A half-truth may be as misleading as a statement which is wholly false. A fraudulent misrepresentation may inhere in a statement which is truthful so far as it goes but which is materially misleading because of the failure to recite qualifying matters. See Nationwide Motorist Ass'n of Michigan, Inc. v. Nationwide Motorist Ass’n., 273 F. Supp. 875 (W. D. Mich. 1967); 37 Am Jur. 2d Fraud and Deceit, § 151 (1968). The intentional concealment oí material information is tantamount to an affirmative misrepresentation of the nonexistence of such information.

There is no question that the marketing area encompassing New York City was important in terms of national retail drug sales; New York was the number one market constituting approximately 7.5% of the national total. The affirmative disclosure that the New York market was not available or the disclosure of other information from which it could be inferred that New York could not be obtained, might have had an impact on Roche’s decision to enter the contract. There was, however, neither an intentional nor inadvertent concealment on the part of Medivox of relevant circumstances concerning the availability of New York as a broadcast area.

Medivox, as it approached its initial meeting with Roche, was apprehensive about the question of securing a radio station in New York. Greene admitted to a feeling of “fear” that the topic would arise and that a New York station might be considered a sine qua .non by Roche. His attitude was that Medivox would “finesse” the question, meaning that it would only be discussed if Roche mentioned it. This attitude bespeaks of a lack of candor and business honesty on the part of Medivox. If Roche itself had not raised the question of New York at the meeting and Medivox had opted to say nothing, this charge of fraudulent concealment might have had telling consequences. The subject of New York, however, was broached by Dr. Mattia who inquired about New York. In answer it was disclosed to Roche that Scott was “married to WOR” and if a station in New York were to be obtained, it would have to be WOR. On these facts, Medivox was not guilty of fraudulent concealment with respect to New York as an available marketing area. Roche was further sufficiently alerted that there might be difficulties in securing WOR. It was not stated in so many words that “Milestones of Medicine” was contrary to WOR’s policy or that WOR would not carry the program. But Roche has not established that such was the policy of WOK or that WOE could not have been persuaded to broadcast the program.

Koche further charges that Medivox misrepresented that it had obtained the leading station in Washington, D. C. to carry the program. The reputation of the drug industry apparently had been tarnished only a few years before as a result of the “Kefauver hearings.” Since the program was designed to improve the standing of the drug industry, Koche felt that a station in the nation’s capital was important. It was not, however, fraudulently represented to Koche that Medivox had obtained any radio station in Washington. At the initial meeting mention was made of various radio stations throughout the country which had expressed interest in the program, including the leading station in Washington, D. C. In the letter of May 13 sent to Koche after the meeting there was enclosed an accompanying sheet which purported to be a list of radio stations. This list indicated only that these stations had signed a so-called “commitment of interest,” as opposed to a binding contract. Koche was, therefore, neither entitled to assume that a radio station in Washington, D. C. had been secured by Medivox, nor that Medivox would do more than use its best efforts to obtain such a station. To the extent that Medivox was then confident of obtaining a station in Washington and conveyed such feelings of assurance to Koche, this was not of ifself false and did not constitute a deceit on its part.

A charge was also made that Medivox was guilty of fraud with respect to its reports concerning broadcast time during the course of performance. It is not disputed that there was a variance between the broadcast time as reported by Medivox to Koche and the actual broadcast time which was established in fact. This disparity between the reports and the fact is not of critical importance. Medivox did not intentionally or willfully make false reports. Medivox’s reports were made in accordance with the formula mutually agreed upon by the parties in the contract, to wit:

A station will be considered to be broadcasting ‘Milestones of Medicine’ if and from the date indicated in the copy received by Roche of the signed agreement between Medivox and such station. However, if circumstances indicate the program has not been broadcast, then Medivox will, at Roche’s request, forward to Roche reasonable evidence to determining whether the program was in fact broadcast. If such evidence fails to show the program was in fact broadcast, appropriate adjustment will be made in the guaranteed broadcast time.

Medivox’s reports reflected broadcast times calculated in. accordance with this provision, that is, from the dates set forth in the contracts signed by the individual radio stations. To the extent that actual broadcast time at the end of the contract was less than the time reported by Medivox, Roche’s relief was a reduction in the basic contract price, if total airtime did not meet the contract guarantee. There was no fraud with respect to this aspect of Medivox’s performance.

Another allegation of fraud concerned the listing of sources in various scripts which had not in fact been used. Roche required that scripts specify sources, and it was entitled to expect that the subject matter of the scripts was derived from the listed sources. In the case of several scripts Roche ascertained after its termination of the contract that certain facts and topics were not even treated in a particular source listed with the script. The instances in which this occurred, however, were relatively sporadic and insubstantial in terms of the total number of scripts produced. Fraud must pertain to a material aspect of the contract. Lembeck v. Gerken, 86 N. J. L. 111 (Sup. Ct. 1914). This dereliction on the part of Medivox cannot be. considered material and does not constitute the practice of an actionable fraud.

In the eighth count of the counterclaim, Roche alleges

In or about May, 1964 plaintiff through its agents, servants, and employees falsely and fraudulently represented to defendant that its concept for the distribution, marJceting and, solicitation of stations for the broadcasting of said radio program series was new, novel, and unique. In fact, plaintiff’s concept was neither new, novel, nor unique but had been in use in syndicated radio broadcasting for many years past. (Emphasis added)

Medivox objected to the introduction of evidence relating to a radio program called “Medical Milestones” produced by the American Medical Association (AMA) as substantive proof of fraud under this count, although such evidence was permitted for purposes of affecting credibility. The basis for its objection, the ruling upon which was reserved at the trial, was that this particular charge of fraud had not been divulged either in the pleadings, answers to interrogatories or the pretrial order.

Interrogatories propounded of Eoche requested it to “state the detail of the concept” to which reference was made in the counterclaim. Boche’s answer in no way disclosed that the concealment of the existence of the AMA program was the basis of its allegation of fraud. The pretrial order which encompassed Eoehe’s factual and legal contentions itemized six fraudulent acts charged to Medivox. The only one having any possible or apparent relevance stated [t]hat “Medivox fraudulently induced HLE to enter the contract by falsely representing that the concept for distribution, marketing, and solicitation of stations to broadcast the program was new, novel and unique”. (Emphasis added). This obviously relates to the eighth count of the counterclaim. Additionally, in an extensive trial brief submitted by Eoche in accordance with the pretrial order, each of the issues of fraud as alleged in the counterclaim was developed and discussed in detail. Thus, Eoche with respect to every other charge of fraud lodged against Medivox left plaintiff under no misapprehension as to the specific acts constituting the fraud. But nowhere in this panoply of pretrial allegations, contentions and recitals is there the slightest reference to a fraudulent act consisting of the concealment from Eoche of the existence of a radio program similar to “Milestones of Medicine.”

Medivox was entitled to assume that the eighth count of the counterclaim recited all of the essential details constituting the fraudulent act charged against it. R. R. 4:9-1. The evidence proffered by Eoche concerning the existence of the AMA program and its concealment from Eoche fell beyond the allegations of fraud in the counterclaim, as well as the issues as framed in the pretrial order. Evidence offered which is without the scope of the contentions and issues as framed in the pretrial order should be excluded. Schlossberg v. Jersey City Sewerage Authority, 15 N. J. 360 (1954); Lertch v. McLean, 18 N. J. 68 (1955). To the extent that a particular contention is neither asserted in the pleadings nor set forth in the pretrial order, or disclosed by interrogatories submitted and answered, the party relying thereon should be foreclosed at trial from establishing such claim. Jardine Estates v. Koppel, 24 N. J. 536 (1957).

Eoche seeks escape from this result by pointing out that Medivox was privy to sufficient information or knowledge concerning the AMA program and could not fairly claim to have been surprised. The existence of the AMA program of “Medical Milestones,” as it developed, was a significant circumstance. Greene testified that he had no present knowledge of the AMA program although he had been informed of such a program in connection with Medivox’s earlier solicitations. Nevertheless, he stated candidly that Eoche would have wanted to know of “Medical Milestones” before it entered into a contract with Medivox. The AMA program was substantially similar to the Medivox program in content, style and format, but there were also important differences in purpose, scope and distribution. Eoche obviously was advantaged in not disclosing this contention of evidence in advance of trial. Had Medivox been apprised of Eoche’s contentions that the failure to disclose the existence of the AMA program constituted a fraudulent concealment of a material fact, Medivox would have been in a position to develop and present evidence relevant to this issue.

Taking into account all of these considerations— the pleadings, the factual contentions in the pretrial order, all of the answers to interrogatories, the trial brief, as well as Medivox’s own knowledge—-the conclusion is inescapable that Eoche intended to steal a tactical march at the trial with this evidence—and it succeeded. The success of Eoche’s ploy, however, is its undoing. Boche sought to navigate the treacherous course between a Scylla and Charybdis, between its duty to apprise and desire to surprise its adversary. In view of the timely objection raised by Medivox to limit the inclusion of such evidence solely to the issue of credibility, and the manifest unfairness in permitting this evidence to be considered on the substantive issue of fraud, the objection must be sustained and the evidence disregarded as tending to establish this charge of fraud.

The eighth count of the counterclaim relates to the method of syndicating “Milestones of Medicine.” Greene testified that in connection with a prior undertaking he had participated in the syndication of radio programs through the use of contracts with radio stations. The experience apparently involved PM stations and did not approach the syndication of “Milestones of Medicine” in terms of promotional objectives, scope or selection of markets or stations. This did not render fraudulent the representation that the “concept for the distribution, marketing and solicitation of stations * * * was new, novel, and unique.”

IV

In view of the determination that Boche’s termination of the contract was justified, it was not in breach of contract. Medivox consequently is not entitled to recover the balance due upon the contract.

Boche itself seeks an affirmative recovery based upon rescission and restitution of its payments under the contract, as well as for consequential damages attributable to Medi vox’s breach.

A material breach going to the essence of the contract may under appropriate circumstances justify the remedy of rescission. Smith v. First Provident Corp., 245 S. C. 509, 141 S. E. 2d 646 (Sup. Ct. 1965); Gaertner v. Rees, 259 Minn. 299, 107 N. W. 2d 365 (Sup. Ct. 1961). This remedy, however, is generally only available when the party seeking to rescind can restore the other party to the status quo. 17 Am. Jur. 2d, Contracts, § 512 at 994 (1964). After part performance a party is not entitled to rescind without returning or tendering the consideration or benefits received. MacFadden v. MacFadden, 49 N. J. Super. 356, (App. Div. 1958); Panco v. Rogers, 19 N. J. Super. 12 (Ch. Div. 1952).

This rule is not rigid but is founded in equity and justice. Medivox, of course, cannot be placed in statu quo ante. It is apparent that during the course of the contract Roche, despite its dissatisfaction with numerous scripts, elected to receive some 135 programs which were broadcast, and it derived whatever benefits inhered in these programs. While it has been established that the quality of scripts failed to satisfy Roche, that this constituted a material breach and that Roche was not obligated to continue the contract, it has not been demonstrated that Medivox’s performance and the programs which it produced were so bereft of value to Roche that equity compels a restitution. Moreover, to the extent that Roche’s claim for rescission and restitution is founded upon fraud, this claim necessarily fails with the failure of proof on this issue. Finally, Roche has not established that it suffered any special loss or tangible injury as a result of Medivox’ breach of contract, which would otherwise entitle it to consequential damages.