Moses v. Edward H. Ellis, Inc., A--111

• Decision Date: 24 April 1950
• Docket Number: No. A--111,A--111
• Citation: 72 A.2d 856,4 N.J. 315
• Parties: MOSES v. EDWARD H. ELLIS, INC.
• Court: New Jersey Supreme Court

Page 315

4 N.J. 315

72 A.2d 856

MOSES v. EDWARD H. ELLIS, INC.

No. A--111.

Supreme Court of New Jersey.

Argued March 20, 1950.

Decided April 24, 1950.

James M. Davis, Jr., Mount Holly, argued the cause for appellant (George B. Marshall, Woodbury, and Samuel P. Orlando, Camden, on the brief).

Carl Kisselman, Camden, argued the cause for respondent (Bruce A. Wallace, Camden, attorney).

The opinion of the court was delivered by

WACHENFELD, J.

A reversal is asked here based upon alleged error in the court's refusal to direct a verdict for the defendant on two grounds: (1) there was no legal obligation on the part of the defendant, and (2) assuming a legal obligation, there was no proof of any damages.

In 1936 a flood occurred in the City of Harrisburg, Pennsylvania, as a result of which it was decided to construct a new system to supply water for municipal purposes and in 1938 this project was approved by the City and the Public Works Administration of the United States Government.

A part of the work was embraced in 'Contract No. 3 for the construction of Clark Valley Dam.' The contract involved forty-three items for which bids were submitted on a unit price scheme. The defendant corporation bid on all forty-three items and was awarded the contract in 1939. The contract itself was voluminous, embracing an entire book, and only the parts involved in this dispute are contained in the record before us.

On May 5, 1939 the defendant entered into a subcontract in writing with the plaintiff by which the latter undertook to do the concrete work called for in the principal contract. This subcontract concerns itself with items 14 to 25, inclusive, and 37 and 42 of the principal contract. Only items 16, 17 and 18 are in dispute. According to the agreement, the plaintiff, as subcontractor, agreed to furnish and deliver all materials and to do and perform all work and labor required, in accordance with the specifications. Paragraph 2 provided:

'In accordance and in conformity with the drawings and specifications for Contract No. 3 for the Construction of Clark Valley Dam and Appurtenances, which said drawings and specifications are hereby made a part of this agreement as fully and with the same effect as if the same had been set forth at length in the body of this agreement,--the said said sub-contractor hereby certifies that having made an examination of the said drawings and specifications and of the site of the work, said sub-contractor proposes to furnish * * *, and in the performance thereof said sub-contractor shall be bound to the contractor by the same conditions, regulations and provisions as are contained in the contract of the said contractor with the City of Harrisburg that said sub-contractor understands the quantities of work as shown herein are approximate only and are subject to increase or decrease, and further agrees that all quantities of work, whether increased or decreased, are to be performed at the following unit prices:

                Item                      Unit Price     Total
                 16    815 c.y. concrete    $17.00    $13,855.00
                 17   1420 c.y. concrete     13.60     19,312.00
                 18   1730 c.y. concrete     17.00     29,410.00"
                

The concrete mentioned in the subcontract was to be placed in the excavations made by the defendant. The specifications relating to the excavating are set forth in 'Section III, Excavation and Backfill,' Paragraphs 105 to 118, inclusive, of the main contract. Paragraph 108 contained amongst other things, the following provision: '* * * Measurement for common excavation will be made between the pay lines indicated on the drawings or staked in the field and the ground surface, as indicated by the above mentioned survey. The Contractor shall remove material which has been deposited subsequent to the above mentioned survey by floods, rains or other causes, and no payment will be made for such excavation. The pay lines, as indicated on the drawings, indicate only the lines to which excavations and fill will be measured and paid for under this contract and are not intended to, and do not represent the actual slope to which excavation shall be made to safely perform this work. The actual slopes may be greater or less than those indicated, depending on the materials excavated and methods used in performing the work, but such changes will not change the measurement for payment from the original lines as specified above. The slopes of permanent excavations will be nealty trimmed to the established lines.'

Paragraph 110, under the topic 'Blasting for Excavation,' provided: 'Blasting will be permitted only when proper precautions are taken for the protection of all persons, the work and property; and any damage done to the work or property by blastings shall be repaired by the Contractor at his own expense. All necessary precautions shall be taken to preserve the rock outside the lines of excavation in the soundest possible condition. Blasting may be done only to the depth, amount, and extent, and in such locations as will, in the opinion of the Engineer, neither crack nor damage the rock outside the prescribed limits of the excavation. No payment will be made for any rock excavation when it becomes necessary to excavate below or outside of the grade lines or pay lines indicated on the drawings, solely due to injury caused by overshooting, improper blasting or carelessness on the part of the Contractor, and all rock thus removed shall be replaced by concrete at the expense of the Contractor.'

The specifications for concrete work on items 16, 17 and 18 each contain the following or similar language: 'After rock excavation is made to neat lines, it shall be cleaned and concrete floor poured, after setting all required reinforcing therein.' And in the case of items 16 and 17, they required that: 'Where one side of walls is against rock, no forms shall be built and concrete shall be puddled thoroughly so as to completely bond with the broken faces of the rock.'

The specifications for each item provided that measurement of the work done should be made 'from the dimensions on the plans and/or from sizes as directed by the Engineer in the field' and 'the entire cost, plus profit, to the Contractor for completing the above described concrete work and all other work incidental thereto, shall be included in the contract price' for the item.

Provision for paying the subcontractor for his part of the work was contained in Paragraph 8 of the subcontract: 'In consideration of the premises and the work so undertaken to be performed by said subcontractor, the said contractor herein agrees to pay the said sub-contractor for said work herein set out, as it, the contractor, is paid for the work in question by the City of Harrisburg * * *.'

Before the structures called for by the items in controversy could be erected, it was necessary to excavate considerable quantities of earth and rock to make room for them. The defendant contended the rock excavation could not be effected to the neat or pay lines, the terms are synonymous, because the rock was stratified and would not break off to a straight line or smooth surface. This left a space between the neat lines set out in the plans and the rock walls of the excavation. By the terms of the contract already set forth, the defendant was required to fill this space with concrete in such a manner as to completely bond with the broken faces of the rock. The plaintiff furnished and poured concrete in a quantity sufficient to comply with this requirement and, in doing so, he naturally had to furnish concrete in excess of the quantity necessary for the work within the neat lines. He claims compensation for the excess to be computed at the unit price established in his subcontract. But the defendant contends that the additional concrete needed as a result of the crevice between the pay lines and the jagged faces of the rock was a hazard which the subcontractor foresaw and assumed at the time of making the contract and, since the principal contract contained a rule of measurement by which the subcontractor was bound, he was not entitled to payment therefor.

The plaintiff received payment for the quantities of work done between the neat lines in accordance with the estimates made by the engineers. The amount in controversy represents the extra work for which the defendant refused to pay, upon the theory that since the main contract relieved the City of paying the general contractor, the latter was likewise relieved from compensating the subcontractor, even though the subcontractor had no control or supervision over the excavations made and the extra work was necessitated by no act of his.

The case was submitted to the jury, which returned a verdict in favor of the plaintiff in an amount representing the extra yardage poured at the price per unit fixed in the subcontract. From the judgment thereon, this appeal is taken and certified here on our own motion.

There was error, the defendant asserts, in refusing to...