Middlesex Concrete Products & Excavating Corp. v. Carteret Indus. Ass'n

• Citation: 68 N.J.Super. 85,172 A.2d 22
• Decision Date: 12 June 1961
• Docket Number: No. A--144,A--144
• Parties: MIDDLESEX CONCRETE PRODUCTS AND EXCAVATING CORPORATION, a New Jersey corporation, et al., Plaintiffs-Appellants, v. CARTERET INDUSTRIAL ASSOCIATION, a New Jersey corporation, et al., Defendants, and Philip B. Streander, Defendant-Respondent.
• Court: New Jersey Superior Court – Appellate Division

Page 85

68 N.J.Super. 85

172 A.2d 22

MIDDLESEX CONCRETE PRODUCTS AND EXCAVATING CORPORATION, a New Jersey corporation, et al., Plaintiffs-Appellants, v. CARTERET INDUSTRIAL ASSOCIATION, a New Jersey corporation et al., Defendants and Philip B. Streander, Defendant-Respondent.

No. A--144.

Superior Court of New Jersey Appellate Division.

Argued May 15, 1961.

Decided June 12, 1961.

Melvin J. Koestler, Elizabeth, for appellants (Koestler & Koestler, Elizabeth, attorneys).

Nicholas Conover English, Newark, for respondent (McCarter & English, Newark, attorneys).

Before Judges PRICE, GAULKIN and SULLIVAN.

The opinion of the court was delivered by

SULLIVAN, J.A.D.

Plaintiffs, Middlesex Concrete Products and Excavating Corporation (Middlesex), and Mr. and Mrs. Neiss, the sole stockholders and owners thereof, appeal from the entry of summary judgment in favor of defendant Philip B. Streander in their suit, charging tortious interference with contractual and business rights and relations.

Plaintiffs describe the defendants as follows:

'The first named defendant, the Carteret Industrial Association (hereinafter called the 'C.I.A.'), is a corporation not for pecuniary profit organized by the 'corporate defendants' and others for the purpose of advancing their joint interests, and used by the 'corporate defendants' as an instrumentality to perform and carry out their joint purposes. The next nine defendants (herein called the 'corporate defendants') are large industrial corporations having plants in Carteret, New Jersey, who are charged with the commencement of and participation in the perpetration of the tortious acts complained of. The remaining defendants are five individuals--two executive officers of the C.I.A., the attorney of the C.I.A. and of the corporate defendants, a professional engineer (Streander), and a construction inspector--who are charged with conspiring with the other defendants and with being the agents through and by whom the tortious acts were committed.'

The total aggregate assessment for taxes of the property owned by the 'corporate defendants' equals 56.26% Of the total net Borough of Carteret ratables.

This appeal is concerned only with the trial court's granting of a motion for the entry of summary judgment in favor of defendant Streander. The other defendants have separately moved for summary judgment but the trial court has deferred hearing such motion until after the instant appeal has been decided.

In 1951 Middlesex contracted with the to file suit against the borough and the sewerage treatment plant and other facilities. The contract provided that Middlesex was to receive monthly payments equal to 90% Of the work done, calculated on estimates made by the borough engineer. Upon certification by the engineer that the contract had been completely performed the balance due Middlesex on the contract was to be paid in two installments.

Middlesex began construction and, as the work progressed, monthly estimates of work done were made by the engineer and were paid by the borough to the extent of 90% Thereof up to and including December 1952. During this period, however, disputes arose between Middlesex and the borough engineer as to the correctness of his certifications and other items, and early in 1953 a series of conferences was had between Middlesex and the borough engineer over the disputed items. As a result, some of Middlesex's claims were allowed in whole or in part by the borough engineer, and some disallowed. In May 1953 and again in July 1953 Middlesex met with representatives of the borough in an effort to secure payment for 90% Of the work certified by the engineer as having been done and to settle the other disputes. According to plaintiffs, considerable progress was made towards the settlement of all matters in dispute.

It is at this point that plaintiffs claim the corporate defendants and their agents interfered; accused Middlesex and the municipal engineer of collusion, fraud, and wrongdoing; charged that excessive amounts were included in the pending unpaid certifications by the engineer; urged that payment of certified amounts be made only after judicial determination by legal action; and threatened the members of the borough council with criminal and civil suit if payments to Middlesex were approved by the council. Plaintiffs alleged that as a result of the foregoing, the settlement which had been so near to consummation was rendered wholly impossible and, on July 20, 1953, Middlesex was compelled to fire suit against the borough and the borough engineer.

In November 1953 Middlesex applied for partial summary judgment in the then pending suit for the sums due to it as shown by the borough engineer's certified estimates of work done and, on December 4, 1953, the borough consented to the entry of a judgment for $343,000 and promptly paid the same. The other items of dispute remained unresolved. Six years of litigation ensued.

In April 1954 the borough retained the engineering firm of Philip B. Streander as consultant in the then pending action. Plaintiffs charge that Streander, instead of making an honest and impartial engineering investigation and report of the facts as he found them, combined with and joined the other defendants and became a part of their combination and conspiracy. The complaint alleges that Streander made computations of the amount of work done in a dishonest and improper manner designed to show that the borough engineer had over-certified quantities of work done, and, without proper investigation, made accusations against Middlesex and the engineer that the prices allowed by the engineer to Middlesex were fraudulent, collusive, excessive, and exorbitant. As a result of Streander's investigation and report dated August 1954 the borough applied for and was granted leave to amend its pleadings so as to add separate defenses, a counterclaim and cross-claim.

The suit came to trial in September 1957 and consumed 121 court days. Streander appeared as consultant and advisor for the borough during the trial and testified as an expert witness for it. Middlesex's demands in the suit totalled $1,800,000, less $343,000 previously paid under the partial summary judgment. The trial court found in the plaintiffs' favor to the extent of $431,291.91 and also dismissed the counterclaim filed against Middlesex. In its opinion the trial court was critical of Streander's report and gave little weight to it. The court indicated that Streander and his...