Champ & Co. v. Doughty

• Decision Date: 19 June 1916
• Citation: 98 A. 260
• Parties: CHAMP & CO. v. DOUGHTY et al.
• Court: New Jersey Supreme Court

98 A. 260

CHAMP & CO.

v. DOUGHTY et al.

Court of Errors and Appeals of New Jersey.

June 19, 1916.

(Syllabus by the Court.)

Appeal from Supreme Court.

Action by Cramp & Co. against Edward Doughty and another, trading as Doughty & Notley, and others. From a judgment for plaintiff, defendants appeal. Affirmed.

David R. Rose, of Camden, and Robert H. McCarter, of Newark, for appellants. Walter H. Bacon, of Bridgeton, for appellee.

BERGEN, J. The plaintiff, having contracted with the owner for the erection of the Hotel Traymore at Atlantic City, sublet the necessary excavation for foundations and cellar to the defendants, the terms and conditions being committed to a writing signed by both parties bearing date August 4, 1914, in which defendants agreed to do all the required excavation of every kind, back-filling, shoring, sheet-piling, and pumping of water, in accordance with the specifications contained in the principal contract between the plaintiff and the owner, the work to be done under the direction of the architects whose construction of the meaning of plans and specifications should be final. It was also agreed that no alterations should "be made in the work except upon written order of the contractor; the amount to be paid by the contractor, or allowed by the subcontractor by virtue of such alterations, to be stated in said order," and if the price could not be agreed upon by the parties, the work should go on and the amount be determined by arbitration. The compensation was to be 40 cents per cubic yard; the material to be excavated was principally ocean beach sand; water was reached when the excavation was brought to approximately the level of the ocean, and the extent of the excavation shown by the plans. The contract provided for a bond of $3,000 to guarantee the performance of the contract, which was given by defendants with "Globe Indemnity Company" as surety. October 17, 1914, the defendants gave plaintiff this notice: "We find that we are unable to complete the excavation work at the Traymore Hotel for which we have a contract with you, and hereby give you notice of the same." A copy of this was sent to the Surety Company, and it notified plaintiff that it did not elect to complete the contract. Thereafter plaintiff finished the excavation, according to defendants' contract, at an excess cost of $19,212.44, and brought this suit, declaring against the subcontractors for the excess cost, crediting on it the penalty of the bond, and against them and the surety, on the bond. The judgment is against the subcontractors for the amount found by the trial court, a jury being waived, to be due for excess cost, less the penalty of the bond, and against them and the surety for the penalty of the bond, from which the two subcontractors appeal. The Surety Company does not appeal.

The principal defense set up by the appellants is that they were directed to excavate to a greater depth than the plans called for, and owing to the peculiar character of the work, which required the exclusion of water, the increased depth enhanced the proportionate cost so that 40 cents per cubic yard was not a fair compensation for the increased depth, and that such work was not within the contemplation of the parties nor provided for by the contract without a written order from the contractor, and therefore they were justified in abandoning its performance, and also that the right of recovery is limited to the penalty of the bond. Whether it was proper practice to credit the amount of the indemnity, secured by the bond, against the total excess cost rather than enter judgment for full amount of such cost, leaving the judgment on the bond...