J.L. Davis & Associates v. Heidler

• Citation: 263 N.J.Super. 264,622 A.2d 923
• Parties: J.L. DAVIS & ASSOCIATES, t/a Davis House Movers, Plaintiff-Respondent, v. Charles L. HEIDLER and Marvel B. Juckett, Defendants-Appellants.
• Decision Date: 30 March 1993
• Court: New Jersey Superior Court – Appellate Division

Page 264

263 N.J.Super. 264

622 A.2d 923

J.L. DAVIS & ASSOCIATES, t/a Davis House Movers, Plaintiff-Respondent, v. Charles L. HEIDLER and Marvel B. Juckett, Defendants-Appellants.

Superior Court of New Jersey,

Appellate Division.

Submitted Feb. 9, 1993.

Decided March 30, 1993.

Ballen and Gertel, Camden, for defendants-appellants (Leonard J. Bystrick, of counsel and on the brief).

Harold S. Vogel, Wildwood, for plaintiff-respondent.

Before Judges MICHELS, BILDER and BAIME.

The opinion of the court was delivered by

MICHELS, P.J.A.D.

Defendants Charles L. Heidler (Heidler) and Marvel B. Juckett (Juckett) appeal from a judgment of the Law Division that awarded plaintiff J.L. Davis & Associates, t/a Davis House Movers (Davis) damages in the total sum of $19,100.

Briefly, in July 1987, Davis and defendants entered into a contract to move a house located in Wildwood, New Jersey, owned by Juckett. The two-story house sat on pilings over the water and had to be moved because the pilings were deteriorating. Apparently, Juckett was under a court order to remove the house as the municipality wanted to build a temporary bridge and the construction could damage the house. After discussing the project with Heidler, the general contractor, Davis prepared two handwritten contracts which he signed and gave to Heidler for review by Juckett. The contract price was $12,500 to be paid in installments. Specifically, $500 was to be paid upon signing the contract, $2,000 upon arrival on the job site with the equipment, $4,000 when the building had been raised and ready for moving, $3,000 when the building was moved to the street and the final $3,000 when the building was replaced on the new pilings. In August 1987, Davis received the signed contract and check for $500.00. The contract provided, in pertinent part, that:

4. The owner agrees to pay for all costs of permits, bonds, police and fire escort, removal of wires, trees and other obstructions before the building is scheduled to move.

* * * * * *

9. It is understood and agree[d] that the owner will complete the necessary work so that the contractor's equipment can be removed within 30 days after the building has been moved to the new site, and upon failure to do so, an equipment rental charge of $50.00 per day shall be paid for by the owner until such work has been performed, so that the equipment can be removed.

* * * * * *

12. It is further agreed that if the owner should find it necessary to cancel this agreement prior or during the performance of the work by the contractor, then and in case of such event, the owner agrees to reimburse the contractor for all costs incurred up to the time of such canceling plus overhead charges and profit. Not to exceed $500.00 if cancel within 30 days.

* * * * * *

14. Start of job end of Oct. 1987.

In August 1987, Davis arrived to commence the work, but could not start because defendants had not obtained the necessary removal and replacement permits. Although the removal permit was issued in September 1987, the replacement permit was not obtained until December 1987. Thus, by the specified October 1987 starting date, all the required permits had not been obtained, and therefore, the project was delayed.

In November 1987, defendants notified Davis that as a result of the delay in moving the house, the piling contractor had to reschedule its work. In late November 1987, Juckett contacted Davis to move the house on December 2, 1987, but soon thereafter, told Davis not to move the house as requested. On December 4, 1987, Davis was arrested for theft by deception on a criminal complaint signed by Heidler. Later, in a conversation with Heidler, who Davis claimed would drop or resolve the criminal complaint, Davis agreed to commence the work on December 21, 1987, as all permits had issued. Heidler provided Davis with a letter of authorization to move the house. Thereafter Davis proceeded over the course of seven days to move the house off its pilings. Additionally, Davis performed extra work to remove a porch which defendants had agreed, but were unable, to remove. Davis claimed Heidler agreed to pay for the extra work.

In January 1988, Juckett informed Davis that the piling contractor would not start his job until the end of the month. Eventually, Davis stopped work because defendants had failed to pay. Ultimately, another house mover placed the house back on its pilings in the late spring of 1988 at a cost of $7,500. On June 10, 1988, Davis removed its steel support equipment which had been under Juckett's house since December 1987.

Davis instituted this action against defendants, seeking to recover $16,600 less the $500 already paid by defendants, plus $3,000 in lost profits, for a total of $19,100. More specifically, Davis claimed $9,000 for the value of the work performed under the contract; $1,200 for the value of the extra work performed; and $6,400 for the rental costs of the steel remaining under the house as specified in the contract (128 days at $50/day). Following a bench trial, the trial court awarded Davis the full value of his claims, and ordered Heidler to pay $19,100 and Juckett to pay $9,000. The $9,000 awarded against Juckett representing the value of the work performed under the contract. The trial court clarified the judgment by providing that the award was not for a total of $28,100 and that in no event did Juckett's obligation under the judgment exceed $9,000. This appeal followed.

We are satisfied from our study of the record and the arguments presented that, with the sole exception of the trial court's awarding Davis $3,000 for lost profits, there is substantial credible evidence in the record as a whole to warrant the findings and conclusions of the trial court and we discern no sound reason or justification for disturbing them. Leimgruber v. Claridge Assocs., 73 N.J. 450, 455-56, 375 A.2d 652 (1977); Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 483-84 323 A.2d 495 (1974); State v. Johnson, 42 N.J. 146, 162, 199 A.2d 809 (1964); R. 2:11-3(e)(1)(A). Moreover, all of the issues of law raised are clearly without merit. R. 2:11-3(e)(1)(E). Before turning to defendants' claim that the trial court's award and computation of lost profits constituted plain error, further comment is appropriate with respect to some of defendants' other contentions.

I.

Defendants claim that the trial court's finding that Davis was entitled to 128 days of equipment rental under Paragraph Nine of the contract "was not in accordance with the contract language and, therefore, was not based upon reasonable evidence and constituted plain error." We disagree.

As we summarized in Karl's Sales & Service v. Gimbel Brothers, 249 N.J.Super. 487, 492-93, 592 A.2d 647 (App.Div.), certif. denied, 127 N.J. 548, 606 A.2d 362 (1991):

The polestar of contract construction is to discover the intention of the parties as revealed by the language used by them. Jacob v. Great Pacific Century Corp., 104 N.J. 580, 582, 518 A.2d 223 (1986); Kearny PBA Local # 21 v. Kearny, 81 N.J. 208, 221-22, 405 A.2d 393 (1979); Atlantic Northern Airlines, Inc. v. Schwimmer, 12 N.J. 293, 301, 96 A.2d 652 (1953); Casriel v. King, 2 N.J. 45, 50, 65 A.2d 514 (1949). To this end, the language used must be interpreted " 'in accord with justice and common sense.' " Krosnowski v. Krosnowski, 22 N.J. 376, 386-87, 126 A.2d 182 (1956) (citation omitted). As our Supreme Court noted in Tessmar v. Grosner, 23 N.J. 193, 201, 128 A.2d 467 (1957):

In the quest for the common intention of the parties to a contract the court must consider the relations of the parties, the attendant circumstances, and the objects they were trying to attain. An agreement must be construed in the context of the circumstances under which it was entered into and it must be accorded a rational meaning in keeping with the express general purpose. Cameron v. International, etc., Union No. 384, 118 N.J.Eq. 11 (E. & A.1935); Mantell v. International Plastic Harmonica Corp., 141 N.J.Eq. 379 (E. & A.1947); Heuer v. Rubin, 1 N.J. 251 (1949); Casriel v. King, 2 N.J. 45 (1949); Owens v. Press Publishing Co., 20 N.J. 537, 543 (1956).

See also Jacobs v. Great Pacific Century Corp., 104 N.J. at 582, 518 A.2d 223; Fidelity Union Trust Co. v. Robert, 36 N.J. 561, 567, 178 A.2d 185 (1962); Anthony L. Petters Diner, Inc. v. Stellakis, 202 N.J.Super. 11, 28, 493 A.2d 1261 (App.Div.1985); Bruenn v. Switlik, 185 N.J.Super. 97, 105, 447 A.2d 583 (App.Div.), certif. denied, 91 N.J. 536, 453 A.2d 857 (1982); Insurance Co. of Penna. v. Palmieri, 81 N.J.Super. 170, 179, 195 A.2d 205 (App.Div.1963), certif. denied, 41 N.J. 389, 197 A.2d 15 (1964); Union Cty. U-Drive It v. Blomeley, 48 N.J.Super. 252, 256, 137 A.2d 428 (App.Div.1958).

Also, where an ambiguity appears in a written agreement, the writing is to be strictly construed against the party preparing it. See In re Miller's Estate, 90 N.J. 210, 221, 447 A.2d 549 (1982); Liqui-Box v. Estate of Elkman, 238 N.J.Super. 588, 599, 570 A.2d 472 (App.Div.1990). This rule of construction is somewhat tempered by the principle that although "a contractual provision should generally be construed narrowly against its drafter [citation omitted], the construction should be sensible and in conformity with the expressed intent of the parties." Broadway Maintenance Corp. v. Rutgers, 90 N.J. 253, 271, 447 A.2d 906 (1982). In this regard,

Even where the intention is doubtful or obscure, the most fair and reasonable construction, imputing the least hardship on either of the contracting parties, should be adopted [citation omitted], so that neither will have an unfair or unreasonable advantage over the other. [Tessmar v. Grosner, 23 N.J. 193, 201, 128 A.2d 467 (1957) ].

However, where the terms of a contract are clear and unambiguous there is no room for interpretation or construction and the courts must enforce those terms as written. Kampf v. Franklin Life Ins. Co., 33...