Headley v. Cavileer

• Decision Date: 04 March 1912
• Citation: 82 A. 908,82 N.J.L. 635
• Parties: HEADLEY v. CAVILEER.
• Court: New Jersey Supreme Court

82 A. 908

82 N.J.L. 635

HEADLEY

v. CAVILEER.

Court of Errors and Appeals of New Jersey.

March 4, 1912.

(Syllabus by the Court.)

Error to Supreme Court.

Action by Samuel H. Headley against Walter K. Cavileer. Judgment for plaintiff in the circuit court was reversed in the Supreme Court and plaintiff brings error. Judgment of Supreme Court reversed, and that of circuit court affirmed.

Bourgeois & Coulomb, for plaintiff in error.

Thompson & Smathers and Henry W. Lewis, for defendant in error.

PARKER, J. The controversy in this case relates to a claim for extra work on a building in Atlantic City erected by plaintiff, Headley, for the defendant under a written contract and specifications. These specifications, which are referred to in the contract as annexed thereto as part thereof, contain the following clause: "Alterations.—At any time directed by the owner, the contractor shall make any alterations, additions or omissions from the plans and specifications without affecting the validity of the contract, but the price of all work shall be added to or deducted from the contract price as the case may be, and the amount agreed upon and affixed in writing and signed by the owner and contractor before such work is begun. Such order for work must be produced and surrendered at the final settlement or no payment for such work will be made. Should any dispute arise relative to such charges, they shall be settled by arbitration, the committee, whose decision shall be final, to be appointed, one by each party to the contract and a third to be chosen by the two first selected." There was evidence at the trial from which the jury were justified in a finding that by several express agreements between plaintiff and defendant certain changes were made in the details as prescribed in the plans and specifications, and that extra compensation to plaintiff was orally agreed upon therefor, as, for example, detail window frames, instead of stock frames, extra 50 cents each; shingled porch columns, instead of stock turned columns, $3 each; oak finish in two rooms, instead of cypress, agreed on (as testified by plaintiff) at $59 per house; change in kitchen ranges, $16 each; in door and window heads $15.60; and in heating apparatus $86. There was other work done, such as planing floors, varnishing, and patching of roof, but as to this there was no agreement on a price, nor, so far as appears, any specific agreement unless the fact that the planing "was to be done and charged for" be regarded in that light. At the trial the court was requested to charge the jury that "in no event can the plaintiff recover more than $8,000, the contract price, less $3,291.67, the amount paid"; also, that "there can be no recovery for any alterations or additions, because there was no written order as provided by the specifications." These requests were refused, and plaintiff had a verdict and judgment embracing his claim for extras. The judgment being taken to the Supreme Court on writ of error, that court held, without passing specifically on the second request, that the first should have been charged, quoting the clause as to alterations set forth above, and adding: "This provision of the contract was binding upon the parties unless it was subsequently annulled by their agreement. There is nothing in the testimony before us to show such annulment, and the defendants cannot be deprived of its protection without their consent. There was no writing signed by the owner and contractor fixing the amount to be paid for the extra work. By the terms of the contract the plaintiff was not entitled to be paid for such work in the absence of such writing. The defendants, therefore, were entitled to have their request charged and its refusal was harmful error." The Supreme Court accordingly gave judgment of reversal, and that judgment is now before us at the instance of the original plaintiff. The substantial questions for determination are whether such a provision in a written contract as that now before us may be modified or waived by the acts or subsequent agreement of the parties or both, and, if so, what is sufficient evidence of such a waiver.

Disputes between contractors and owners as to extra work and changes on building or working contracts are as old as the practice of contracting for such work, and are a fertile cause of litigation. For very many years the effort has been to limit or prevent them by putting the main contract in writing, and stipulating, in effect, that changes and alterations must be agreed on in writing in order to support a claim for extra compensation. When there is an architect or engineer, he is usually brought into such a stipulation as arbiter or agent of one or both parties. In the case at bar there was no architect, but we conceive that this makes no difference in the principle to be applied. The courts, early recognizing the beneficial character of such stipulation as tending to prevent trumped-up claims for extras and acrimonious disputes between owner and contractor resulting in litigation and loose testimony often running into perjury, endeavored as far as they could to give effect to such provisions, and occasionally succeeded. Miller v. McCaffrey, 9 Pa. 245 (1848).

The fundamental difficulty, however, 'pith which owners and courts had to contend and which in the absence of legislation is insuperable, was and is that there is no statute requiring such contracts as the present one to be in writing, that parties who have contracted together have a right to cancel their contract, or alter it in any way not prohibited by law, or to supplement it by another and additional contract, and, in cases of this kind, may do so orally in the absence of any statute requiring such contracts to be in writing. Consequently, no legal force could or can be given to stipulations of the character now under consideration as constituting a prohibition against the parties altering the main contract by mutual agreement. No matter how stringently such clauses may be worded, it is always open for the parties to agree orally or otherwise, upon proper consideration, that they shall be partially or entirely disregarded and another arrangement substituted. Were any different rule adopted, the right of contract would be to that extent impaired; so that, until the Legislature sees fit to enact some statute of frauds covering this point, building contracts solemnly entered into in writing and under seal must be subject to radical change by the mere conversation of the parties if such conversation answers the tests of a contract at common law. This proposition was intimated in the opinion of former Justice Collins, speaking for this court, in the case of Cooper v. Hawley, 60 N. J. Law, 560, 563, 38 Atl. 964, 965, where he said: "Speaking for myself, I can see no reason why a valid contract of whatever nature should be denied efficacy because the parties had previously made a different contract, however solemn in form." That case, however, went off on another point, viz., that in the contract then in question the extra work clause was held to refer only to extra work ordered by the architect and not extra work ordered by the owner—a decision very similar to that in Wood v. Ft. Wayne, 119 U. S. 312, 7 Sup. Ct. 219, 30 L. Ed. 416, and Wilkens v. Wilkerson (Tex.) 41 S. W. 178. But the right of the parties to supplement their original agreement, no matter how solemn in form, by a later agreement however informal, is fully recognized by such cases as Bartlett v. Stanchfield, 148 Mass. 394, 19 N. E. 549, 2 L. R. A. 625, where the Supreme Court of Massachusetts, speaking through Mr. Justice Holmes, said: "Attempts of parties to tie up by contract their freedom of dealing with each other are futile. The contract is a fact to be taken into account in interpreting the subsequent conduct of the plaintiff and defendant no doubt. But it cannot be assumed as matter of law that the contract governed all that was done until it was renounced in so many words, because the parties had a right to renounce it in any way and by any mode of expression they saw fit. They could substitute a new oral contract by conduct and intimation as well as by express words." It was said in Copeland v. Hewett, 96 Me. 525, 53 Atl. 36: "Parties have a right to contract in any way they see fit, orally, by simple contract or by specialty. When the statute of frauds is not involved, the one form is as binding as the other, and, however evidenced, the contract remains...