Curtis Elevator Co., Inc. v. Hampshire House, Inc.

• Decision Date: 06 February 1976
• Citation: 142 N.J.Super. 537,362 A.2d 73
• Parties: CURTIS ELEVATOR CO., INC., Plaintiff, v. HAMPSHIRE HOUSE, INC., a New Jersey corporation, Defendant.
• Court: New Jersey Superior Court

Page 537

142 N.J.Super. 537

362 A.2d 73

CURTIS ELEVATOR CO., INC., Plaintiff, v. HAMPSHIRE HOUSE, INC., a New Jersey corporation, Defendant.

Superior Court of New Jersey,

Law Division.

Feb. 6, 1976.

Francis J. DeVito, Hackensack, for plaintiff.

Breslin & Breslin, Hackensack, for defendant (E. Carter Corriston, Hackensack, of counsel).

MORRISON, J.D.C., Temporarily Assigned.

Hampshire House is a 22 story, high-rise apartment building located at 1590 Anderson Avenue, Fort Lee, New Jersey. Prior to June 29, 1971 Carmelo Luppino, president and sole principal of defendant Hampshire House, Inc., and Cosimo S. Papadia, president of plaintiff Curtis Elevator Co., Inc., (Curtis) entered into negotiations involving the sale and installation of three elevators in Hampshire House. As a result of these negotiations, which included both terms and price, a contract was entered into on June 29, 1971 executed by Luppino and Armand Domenchetti, the chief construction supervisor of Curtis. The basic terms of the contract were that Curtis would supply and install three elevators in Hampshire House for a total price of $158,000. No date was specified for completion of the elevators. Additionally the contract provided for three months maintenance by Curtis at no cost to Luppino.

The contract also contained a provision commonly known as a 'strike clause,' the pertinent part of which reads:

We (Curtis) shall not be liable for any loss, damage, or delay caused by strikes, lockouts, fire, explosion, theft, floods, riot, civil commotion, war, malicious mischief, act of God, or by any cause beyond our reasonable control, and in any event we shall not be liable for consequential damages * * *

It should be noted that both parties are highly skilled in their respective trades. Luppino has 31 years experience in the construction industry and had previously built at least 5 high-rise buildings for himself and 10 to 15 buildings for others. Similarly, Curtis is a company of long standing in the business of installing and servicing elevators. Prior to the installation in Hampshire House, Curtis had worked on four other buildings of up to eight stories constructed by Luppino since 1963.

In November 1971 Curtis commenced work on the installation of all three elevators in the lowe floors. The upper floors, including the housing for the hoist machinery, was not yet complete. Estimated time for completion of the project was set by Curtis at 65 weeks, barring unforeseen difficulties.

Work on the elevators proceeded uneventfully until July 1, 1972 when Local 1 of the International Elevator Construction Union went on strike, effectively halting all elevator installations within a 35 mile radius of New York City. This strike affected all companies hiring union elevator installers and lasted until February 1, 1973. At the time of the strike the elevators were working on a temporary basis, with temporary controls and platforms but no cars.

Luppino testified that prior to the strike in April or May 1972 Papadia promised to have one elevator working by August 1, 1972. Papadia denies any such agreement, nor is there any evidence that such a modification was supported by additional consideration.

Subsequently, on October 11, 1972 Luppino hired a nonunion company, Lavin Elevator, consisting of Mr. Lavin and his son, to complete the job on a time basis. Plaintiff Curtis agreed to supervise Lavin, supply materials and approved Lavin as competent. Additionally, Curtis offered to give Luppino a $3,000 per car (or $9,000) credit, which he accepted, to cover the cost of Lavin's work.

Working part-time, it took Lavin approximately six weeks to complete the first elevator, which was ready for service sometime in December 1972.

The second and third were finished in February and April, respectively. Lavin ultimately billed Luppino $12,000 for the entire job.

Prior to completion of the first elevator, defendant received a limited certificate of occupancy restricting rentals to the first four floors. This necessitated that defendant retain the external construction elevator and its operator in order to be able to move the tenants' furniture into the building during the three months prior to the completion of the first elevator.

In April 1973 it was found that the generator motors had been improperly wound by General Electric for 400 volts rather than the 480 volts required. This resulted in an additional expense which the three parties, General Electric, Curtis and Luppino, agreed to share equally. During the time after completion of the contract there was no evidence that Curtis provided the free maintenance as specified under the contract. In fact, Lavin continued to maintain the elevators at a cost of $700 to defendant.

This case now comes before this court sitting without a jury for trial. Plaintiff Curtis demands the balance due on the contract, $29,500 plus $2,500 for extras requested by defendant. Plaintiff also seeks $25,405 for the extra supervision of the Lavins to complete the job. Defendant by way of counterclaim asserts claims against plaintiff of $6,758.48 for the outside hoist operator; $1,800 for three extra months rent on the outside hoist; $36,000 for loss of rents; $363.69 assessed by the State of New Jersey because Curtis was a nonregistered subcontractor, and $500 as Curtis' share of the reinstallation of the faulty generators.

The evidence elicited at trial shows that the contract, including the strike clause, executed between plaintiff and defendant is a standard contract used by all elevator installers in this area. It is agreed by both parties that subject to defendant counterclaim, there exists a balance due plaintiff on the contract of $30,500.

Defendant in support of its counterclaim contends that the contract is illusory and indefinite since Curtis was not subject to a specific completion date and its promise was conditional on the nonoccurrence of specific events.

Restatement, Contracts, 2, Comment B defines an illusory promise as follows:

An apparent promise, which according to its terms Makes performance optional whatever may happen, or whatever course of conduct in other respects he may pursue, is in fact no promise, although often called an illusory promise.

It is well established in this jurisdiction that in the absence of a completion date in the contract, the law implies it shall be done in a reasonable time. Wemple v. B. F. Goodrich Co., 126 N.J.L. 465, 19 A.2d 692 (E. & A.1941); Ocean Cape Hotel v. Mosefield Corp., 63 N.J.Super. 369, 164 A.2d 607 (App.Div.1960). There is no evidence that the performance of this contract by Curtis was optional. Luppino himself in his deposition read into the record stated:

If there was no strike I believe we shouldn't have had any problem because he had enough time to complete the elevator.

Indeed, all parties agree that the sole cause of the delay in completion of the elevators was the strike. Therefore this court finds as a matter of fact that the strike was the sole cause of the delay in the completion of the contract and but for that delay the contract would have been performed within a reasonable time. The evidence further reveals, and this court finds as a fact, that after the strike ended, and indeed during the strike, plaintiff performed reasonably in attempting to complete the installation.

Defendant also argues that the presence of the strike clause in the standard elevator installers contract renders that contract unconscionable Per se. Defendant cites the official Comment, Note 1, of N.J.S.A. 12A:2--302 which reads The basic test is whether, in light of the general commercial background and the commercial needs of the particular trade or case, the clauses involved are so onesided as to be unconscionable under the circumstance existing at the time of...