Loizeaux Builders Supply Co. v. Donald B. Ludwig Co.
| Decision Date | 26 October 1976 |
| Citation | 144 N.J.Super. 556,366 A.2d 721 |
| Parties | , 21 UCC Rep.Serv. 58 LOIZEAUX BUILDERS SUPPLY CO., a New Jersey corporation, Plaintiff, v. DONALD B. LUDWIG CO., Defendant. |
| Court | New Jersey Superior Court |
Meyer Rosenthal, Morristown, for plaintiff (Trueger & Rosenthal, Morristown, attorneys).
Bruce H. Dexter, Hackensack, for defendant (Lloyd Ludwig, Hackensack, attorney).
DREIER, J.C.C., Temporarily Assigned.
On or about February 13, 1973 plaintiff, a concrete supplier, contracted with defendant for the sale and delivery of concrete for use by defendant, a general contractor, at the 'Smith Transport job' in Woodbridge, N.J. The initial contract terms were agreed to over the telephone. Mr. Krause, plaintiff's vice-president in charge of production, testified that he notified defendant's president, Donald B. Ludwig, of the price defendant would be charged per cubic yard of concrete, and further alerted defendant to the additional 'usual' charges that would be imposed if warranted. With regard to these unspecified 'usual' additional charges, plaintiff agreed that defendant would not be charged for 'waiting time' if the time was not excessive. As to the price terms of the contract, both parties testified that it was agreed that prices for concrete given by plaintiff would be adhered to for the year.
The testimony of the parties also indicates that the deliveries ran through March 1974. The routine procedure was for defendant to call plaintiff and order a specified number of cubic yards of concrete and (after an initial strike period not now in dispute) such orders would then be delivered to defendant's job site in plaintiff's trucks. Defendant was billed on the tenth, twentieth and thirtieth of each month by invoices, many of which were introduced at trial. Payments on account were made by defendant up to June 30, 1974, and thereafter by a single check dated July 22, 1974 in the amount of $1,943.84 on which was noted that plaintiff was 'Paid in Full.' Plaintiff claims that the sum of $1,368.61 is still due, itemized as follows:
Price Increases Effective
1/1/74 $ 389.58
Waiting Time Charges 563.86
Less than Truckload Charge 79.18
Finance Charges 188.97
Sales Tax 147.02
---------
$1,368.61
The sales tax, in the reduced amount of $139.50, was conceded by defendant to be due, and the amount was so stipulated by the parties. The court will deal with the remaining items in order.
At the outset it should be noted that the contractual dealings between the parties extended for a period in excess of one year from the initial telephone conversation. This was not a requirements contract under N.J.S.A. 12A:2--306. Donald Ludwig testified that he did not consider himself bound in any way to order his supplies from plaintiff. He felt no obligation to deal exclusively with plaintiff but rather stated that if a supplier at a lower price had come to his attention, he could have dealt with it instead of plaintiff. Krause agreed that defendant could have bought its supply of concrete elsewhere. Accordingly, the relationship between the parties is best characterized as a series of separate contracts, with the added element that several of the contract terms related back to the parties' original agreement.
The parties both agree that the price term for concrete originally agreed to was fixed for 'the year.' Defendant claims that the year should be measured from the first order of concrete placed with plaintiff, thus contemplating a 'contract' year directly related to defendant's estimated time on the job. Plaintiff, however, states that its offer to hold the price for the year meant the calendar year, I.e., 1973.
The fundamental rule of construction of contracts calls for the ascertainment of intent of the parties in light of the general purpose of the contract. The subsequent conduct of the parties is also relevant in revealing their original understanding. Michaels v. Brookchester, Inc., 26 N.J. 379, 388, 140 A.2d 199 (1958); American Exp. Co. v. Rona Travel Service, Inc., 77 N.J.Super. 566, 187 A.2d 206 (Ch.Div.1962).
In this case there are no circumstances surrounding the general purposes of this contract or the subsequent conduct of the parties which would lead this court to lend to the term 'the year' (as opposed to 'a year') anything other than its usual and natural meaning. Also, defendant was under no obligation to deal with plaintiff after having received notice at the end of 1973 of price increases effective January 1, 1974. Having chosen to re-order concrete from the plaintiff notwithstanding knowledge of the price increases, defendant is not now in a position to assert its nonacquiescence.
With respect to the remaining disputed charges, defendant, while acknowledging these charges to be customary, maintains that they were not specifically agreed to at the outset, and therefore were not a part of the contract. This was strenuously denied by plaintiff.
Defendant's position is untenable for two reasons. First, it assumes the existence of a single requirements contract which, as noted above, did not exist, even under defendant's own characterization of the relationship. But even if defendant's version of the original conversation were accorded by this court, defendant was alerted to these additional charges at the time he received his first invoice from plaintiff, which contained an itemization of these additional charges. If defendant disagreed with these charges, it was free to cease ordering its supplies from plaintiff. Cf. N.J.S.A. 12A:2--208(1).
In addition, the disputed charges were established by plaintiff to be subject of an industry-wide pricing policy, which may be recognized by the court as relevant in determining the meaning of the agreements between the parties. N.J.S.A. 12A:2--208(2); Public Service Mut. Ins. Co. v. White, 4 N.J.Super. 523, 526, 68 A.2d 278 (App.Div.1949); Leitner v. Braen, 51 N.J.Super. 31, 143 A.2d 256 (App.Div.1958). These charges being customary in the trade strongly corroborates plaintiff's version of the initial negotiation between the parties. The court is mindful that it should not undertake to write a contract for the parties. Where, however, it is evident that the parties intended to contract, it is within the province of the court to construe the terms of their contract consistent with a result that is fair and just. Paley v. Barton S. & L. Ass'n, 82 N.J.Super. 75, 196 A.2d 682 (App.Div.1964); N.J.S.A. 12:2--204. The construction including recognized additional charges accomplishes that end. The 'less than truckload' charge falls within the category of usual charges for which defendant is responsible.
There was an express agreement between the parties that the usual waiting time charges would be waived by plaintiff, if not found to be excessive. This court finds that the waiting time experienced by plaintiff's trucks and drivers was not excessive, even applying the standards testified to by plaintiff's witnesses (although that testimony was somewhat ambiguous). Accordingly, plaintiff will now be held to its original agreement not to charge defendant for waiting time where such time was not excessive.
The only item in dispute, which the court finds not to have been a part of the terms of any of the agreements between the parties, is the so-called service charges by plaintiff. As noted earlier, defendant billed every ten days for deliveries that took place in the previous ten-day period, and it was agreed by the parties that defendant would pay upon receipt of invoice. Defendant did so until June 30, 1974 when it ceased making payments on account. But nowhere did the addition of any service charge appear on an...
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