Middlesex Concrete Products & Excavating Corp. v. Borough of Carteret in Middlesex County

• Decision Date: 28 April 1955
• Docket Number: No. A--225,A--225
• Citation: 35 N.J.Super. 226,113 A.2d 821
• Parties: MIDDLESEX CONCRETE PRODUCTS AND EXCAVATING CORPORATION, a New Jersey corporation, Plaintiff-Respondent, v. The BOROUGH OF CARTERET IN the COUNTY OF MIDDLESEX, a municipal corporation Defendant-Appellant, and Louis P. Booz, Defendant-Respondent. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 226

35 N.J.Super. 226

113 A.2d 821

MIDDLESEX CONCRETE PRODUCTS AND EXCAVATING CORPORATION, a New Jersey corporation, Plaintiff-Respondent, v. The BOROUGH OF CARTERET IN the COUNTY OF MIDDLESEX, a municipal corporation Defendant-Appellant and Louis P. Booz, Defendant-Respondent.

No. A--225.

Superior Court of New Jersey Appellate Division.

Argued March 28, 1955.

Decided April 28, 1955.

Russell E. Watson, New Brunswick, argued the cause for defendant-appellant, Borough of Carteret.

Melvin J. Koestler, Elizabeth, argued the cause for plaintiff-respondent (Koestler & Koestler, Elizabeth, attorneys).

Elias A. Kanter, Newark, argued the cause for defendant-respondent Louis P. Booz (Wilentz, Goldman, Spitzer & Sills, Perth Amboy, attorneys; David T. Wilentz, Perth Amboy, of counsel).

Before Judges CLAPP, JAYNE and FRANCIS.

The opinion of the court was delivered by

CLAPP, S.J.A.D.

We are concerned on this appeal with two questions: did the trial court err in refusing to open a summary judgment entered the complaint--the remaining counts not borough as to 6 of the 23 counts of the complant--the remaining counts not having as yet been reached for trial; and did it err in denying the Borough's application to amend its answer so as to add thereto certain separate defenses, counter-claims and cross-claims.

Plaintiff had contracted to construct for the defendant borough a sewage treatment plant and other facilities and, by a separate contract, to furnish and erect certain structural steel, all on a unit price basis (that is, without fixing an overall price). The other defendant, Louis P. Booz, an engineer designated in the contracts as the borough's representative, was directed therein to make, each month

'* * * an approximate estimate of the value of the work done since the preceding estimate and ninety (90%) percent of the amount of such estimate shall be promptly paid the' plaintiff.

When in Booz' opinion the work was completely performed, he was to submit a certificate and a final estimate of the value of the completed work, and payment was then to be made to the plaintiff of the balance remaining due, with certain deductions. But there was this important proviso stated in the contract:

'All prior partial estimates and payments shall be subject to correction in the final estimates and payments.'

Booz made 13 partial estimates under the general contract and 1 under the steel contract, and the borough paid 90% Of each, some $1,700,000. Thereafter Booz certified partial estimates Nos. 14 to 18, inclusive, under the general contract and No. 2 under the steel contract (we have designated them herein, for short, as the 'last six estimates'), but these the borough declined to pay. This suit followed, and Booz never made any further certificates.

The six counts of the complaint, on which the summary judgment was taken, are for the 90% (total $340,000) claimed respectively as to each of the last six estimates. In other counts the plaintiff sued not only for the remaining 10% Allegedly due on partial estimates Nos. 1 to 18 on the general contract and Nos. 1 and 2 on the steel contract, but also for work done but not certified to, as well as for large damages and other items. Its demands totalled $1,800,000.

When the application for summary judgment was moved, the borough obtained an adjournment of two weeks to enable it to study a report of philip S. Miller, an engineer of considerable experiencE who for over a month had been conducting an investigation of the project apparently in behalf of an association of industries located in the borough. In the two-week period the borough's counsel and Miller conferred as to the motion. The upshot was that on the adjourned day, the Borough not only put in no defense to the motion, but, it is important to observe, orally consented, through its attorney, to the summary judgment, which is final in form and includes in its terms the formulary prescribed by R.R. 4:55--2. That judgment was for $340,000, and the borough thereupon paid it.

Eight months later, the borough moved to open the judgment and amend its pleadings as stated above, relying on an affidavit of still another engineer retained four months after the judgment. This appeal is from the order denying that motion.

I.

The Effect Here of R.R. 4:55--2.

The summary judgment was entered as to a fraction (90%) of a small part of the sum allegedly due on the contracts, a variable fraction at that--that is, a fraction of a partial estimate which was subject to revision in the final estimate. We need not decide whether under R.R. 4:55--2 the trial court may endow such a judgment with finality.

See 6 Moore's Federal Practice (2nd ed.), at p. 8, 232, n. 12 dealing with a 'partial adjudication' of a claim; at p. 220 as to whether the court's certificate of finality in such a case is nugatory; and at p. 239 suggesting that doubts be resolved in favor of appealability. As to whether under the rule a 'split final judgment' may be rendered only with respect to a separate, entirely distinct claim, arising out of a transaction differing from that involved in other claims joined in the action, see Town of Clarksville v. United States, 198 F.2d 238, 240 (4 Cir., 1952); Dyer v. MacDougall, 201 F.2d 265, 267 (2 Cir., 1952); Leonidakis v. International Telecoin Corp., 208 F.2d 934 (2 Cir., 1953); United States Plywood Corp. v. Hudson Lumber Co., 210 F.2d 462, 465 (2 Cir., 1954); Reeves v. Beardall, 316 U.S. 283, 285, 62 S.Ct. 1085, 86 L.Ed. 1478 (1942); cf. Kuly v. White Motor Co., 174 F.2d 742, 744 (6 Cir., 1949); Magliaro v. Modern Homes, Inc., 115 N.J.L. 151, 178 A. 733 (E. & A.1935).

Nor need we stop to decide whether the parties can by their consent transform a non-appealable interlocutory judgment (if this be such) into an appealable final judgment.

We pass these questions; they have not been raised by counsel. Here, as stated, the borough's attorney consented to the entry of the judgment as a final judgment, and the borough then paid the plaintiff the moneys due on it. The borough thereby waived the right, of which its counsel was cognizant, to have entered the usual revisable interlocutory order; and it cannot now be heard to say that the moneys so paid by it may be recovered back by it on the ground that this was such an order. For such relief as it is entitled to, it must look to R.R. 4:62 (as to which see Point III, infra).

A waiver has often been defined in our cases as a voluntary relinquishment of a known right. See in General Long v. Board of Chosen Freeholders, Hudson County, 10 N.J. 380, 386, 91 A.2d 724 (1952). While this definition has been subjected to criticism, 3 Williston, Contracts (rev. ed.), §§ 678, 679, Ewart, Waiver Distributed (1917), nevertheless we think that under the circumstances here the doctrine of waiver obtains. Cf. Williston, Id., § 679, par. 9; cf., too, 31 C.J.S., Estoppel, § 120, p. 384; 19 Am.Jur. 715.

II.

The Effect of a Final Judgment upon a Revisable Claim.

The borough contends that the summary judgment, though final, is but an integration of plaintiff's claim for 90% Of the last six estimates which were subject to revision on the rendition of Booz' final certificate. And hence, the argument runs, this judgment is itself subject to revision on the rendition of the ultimate final judgment in this case, the function of which will be (so the borough says) to pass not only upon the remaining 10% Of these estimates, but also in a definitive manner upon the 90% Thereof already adjudicated upon.

In support of its position, the borough points out that the summary judgment refers particularly to each of the six counts of the complaint upon which it passes, and that in each count is set forth verbatim the provision of the contract, above quoted:

'All prior partial estimates and payments shall be subject to correction in the final estimates and payments.'

It points out, too, that the plaintiff's brief on the motion for summary judgment, referring to this provision of the contract, seems to indicate that the judgment would not bar any bona fide counterclaim. More significant than this, when the motion first came on for argument before the trial court, plaintiff's attorney, opposing a two weeks' continuance of the motion, said:

'The contract itself provides that all prior partial estimates and payments shall be subject to correction in the final estimate and payments. So that the payment of this (i.e., the sum claimed on the motion for summary judgment) is not conclusive on the Borough, as to the particular items in them. The merits of the litigation are not disturbed. They are merely forced to perform their contract of making certified partial payments for the financing of the job.

'* * * The contract provides for the making of an approximate estimate.

It particularly provides for inaccuracies, that inaccuracies may be corrected in the final certificate. * * * I say that nothing this report (the report of Miller) would show as to inaccuracies would be ruled upon this morning. It would only be relevant on an ultimate determination of the case, which is not at all prejudiced by the result of this motion.'

So, on the one hand, we have claims (those adjudicated upon in the summary judgment) which were (leaving the judgment aside) revisable in amount. On the other hand, taking into account the implications of R.R. 4:55--2, we have a judgment which itself is not 'subject to revision' unless it be opened up pursuant to R.R. 4:62. What, then, is the effect of a judgment, not revisable, upon claims that are revisable?

We need not cut that knot here, for the borough's contentions are met with a waiver quite like that encountered under Point I. Two weeks after the plaintiff made the representations (above-quoted) on opposing the continuance, the borough, after a study of Miller's report, gave its consent in open court to the judgment. Plaintiff on the oral argument before us claimed that this...