Perth Amboy Dry Dock Co. v. Crawford

• Decision Date: 31 January 1927
• Docket Number: No. 29.,29.
• Citation: 135 A. 897
• Parties: PERTH AMBOY DRY DOCK CO. v. CRAWFORD et al.
• Court: New Jersey Supreme Court

135 A. 897

PERTH AMBOY DRY DOCK CO.

v. CRAWFORD et al.

No. 29.

Court of Errors and Appeals of New Jersey.

Jan. 31, 1927.

(Syllabus by the Court.)

Appeal from Supreme Court.

Action by the Perth Amboy Dry Dock Company against Harden L. Crawford and another, partners trading as H. L. Crawford & Co. From a judgment for plaintiff, defendants appeal. Affirmed.

See, also, 98 N. J. Eq. 692, 130 A. 519.

McCarter & English, of Newark, for appellants.

Wall, Haight, Carey & Hartpence, of Jersey City, for respondent.

KATZENBACH, J. This is an appeal from a judgment of the Supreme Court entered upon a verdict of a jury. The trial was held at the Middlesex circuit. The defendants below, Harden L. Crawford and James W. Decker, partners trading as H. L. Crawford & Co., are the appellants in this court. They will hereinafter be referred to as the defendants. The plaintiff below was the Perth Amboy Dry Dock Company, a corporation of this state, which will be hereinafter referred to as the plaintiff. The contracts Involved in the present litigation and the circumstances surrounding the making and partial performance thereof were before this court at the May term, 1925, by virtue of an appeal made by the defendants from a decree of the Court of Chancery in a proceeding in which the plaintiff was the complainant. This court affirmed the decree of the Court of Chancery.

The plaintiff is the owner of a plant at Perth Amboy, in this state, adapted for a dry dock and general ship repair business. In December, 1923, the defendants desired to have scrapped two steel steamships, known as the "Philippines" and "Black Arrow." The plaintiff during this month entered into two agreements with the defendant for scrapping the two ships mentioned. The agreements were identical, except in the name of the steamer and the amount for which the work was to be done. By these agreements the plaintiff was to furnish wharfage during the process of scrapping, gas and oxygen for cutting, use of hose and burning outfits, use of crane for handling of material, use of derrick, general supervision of work, and stage planking. The defendants were to pay for the labor, assistant foreman, day and night watchman, labor in removing the material from the shipyard, and services rendered by outside contractor for railroad. Bills for labor were to be rendered weekly and for use of plant monthly. The agreements contained no reference as to the time within which the scrapping of the ships was to be completed and were also silent as to the size of the pieces of steel into which the vessels were to be scrapped. There were two sizes known to the trade, one called "charging box sizes," which were pieces 22 inches wide by 5 1/2 feet in length, and the other called "shipping sizes," which were pieces not smaller than 20 feet in length by 5 1/2 feet in width. These matters had been considered prior to the making of the agreements and representations as to the length of time within which the scrapping could be completed and the size of the scrapped material, the plaintiff claimed, had been made to it by the defendants. The work of scrapping was commenced immediately after the contracts were made. Winter was the season in which the plaintiff had the least work at its plant. While the work was in progress the price of scrap-lied steel materially declined. The price subsequently fell to a point where it became unprofitable to scrap the ships and market the steel.

In the month of May, 1924, when the "Black Arrow" had been approximately 80 per cent. scrapped and the "Philippines" 30 per cent. scrapped, the defendants ceased work. The ships were left moored to the plaintiff's docks which were by that time required for the usual business done by the plaintiff at that season of the year. The plaintiff believed that it was suffering irreparable damage in its business, and, being unable to persuade the defendants to remove their ships, filed a bill in the Court of Chancery for a mandatory injunction for their removal. The proceeding in the Court of Chancery was heard and the plaintiff obtained a decree directing the defendants to remove the ships. Before the mandatory injunction was actually issued the defendants removed the vessels. The decree in this litigation, as has been stated, was affirmed by this court. This history of the chancery litigation has been related because of its bearing in some respects upon the questions presented to this court upon the present appeal. In connection with the scrapping of the vessels the plaintiff claimed that money was owing to it from the defendants. The plaintiff thereupon commenced an action in the Supreme Court to recover damages for the use of its docks for a longer period than agreed upon, the value of extra gas and oxygen used in cutting the steel from the vessels into charging box sizes instead of shipping sizes as originally contemplated, extra and unpaid labor costs, and the expenses incident to the saving of the "Philippines" from sinking at the dock due to a broken sea cock, etc. The suit was tried at the Middlesex circuit. The result was a judgment in favor of the plaintiff, from which the present appeal was taken by the defendants.

The grounds of appeal are 85 in number. Many of them present the same question. They naturally fall into 7 classes or groups. The first group presents the question of the extent to which the parties to this litigation are bound by the record of the chancery suit. The second group consists of the grounds of appeal involving the question as to the admission of parol evidence respecting the questions on which the contracts were silent, but concerning which representations had been made by the defendants prior to the execution of the agreements. The third group presents the alleged insufficiency of the evidence that the ships could have been completely scrapped within three months. The fourth group are the grounds of appeal which relate to the admission of the testimony of expert witnesses offered by the plaintiff on the subject of what was a reasonable charge for wharfage. The fifth group relates to the refusal of the trial judge to direct the jury to find nominal damages only on the plaintiff's claim for wharfage. The sixth group bears upon the ruling of the trial judge that the plaintiff was entitled to have presented to the jury the question of its right to recover on 11 different items of labor alleged to have been performed by the plaintiff. The seventh group relates to the defendant's liability for the salvaging of the "Philippines" while at the plaintiff's dock. These groups will be taken up in their order for discussion.

The trial judge admitted in evidence, on motion of the plaintiff, the record in the chancery litigation for the purpose of showing that the defendant had been adjudged to have had no right after the period of three months to use the plaintiff's plant, and that by the continued use thereof the defendants were at fault. The defendants claim that the admission of the record in the chancery litigation was error. The present action is between the same parties as appeared in the chancery litigation. The subject-matter of the present litigation was the same as in the Court of Chancery, namely, the construction of the agreements from which the difference between the parties arose. The determinations made in the chancery proceeding were therefore, in the present suit, res adjudicata between the parties.

"The effect of an estoppel by judgment may present two aspects—one where a second suit between the same parties is brought for the same cause of action; the second where a second suit between the same parties is brought not for the same cause of action, but for a cause of action so related to the cause in the preceding suit, that some matter, the establishment of which is essential to the recovery by the complainant in the last suit was in issue and determined in the preceding suit.

"In respect to the first phase in which the question of estoppel presents itself, it is entirely settled that after one judicial determination by a court of competent jurisdiction, a second suit...