Uvalde Asphalt Paving Co v. Cent. Union Stockyards Co.

• Citation: 84 N.J.L. 297,86 A. 425
• Parties: UVALDE ASPHALT PAVING CO v. CENTRAL UNION STOCKYARDS CO.
• Decision Date: 03 March 1913
• Court: New Jersey Supreme Court

86 A. 425

84 N.J.L. 297

UVALDE ASPHALT PAVING CO

v. CENTRAL UNION STOCKYARDS CO.

Court of Errors and Appeals of New Jersey.

March 3, 1913.

(Syllabus by the Court.)

Error to Circuit Court, Hudson County.

Action by the Uvalde Asphalt Paving Company against the Central Union Stockyards Company. Judgment for defendant, and plaintiff brings error. Reversed.

Gilbert Collins, of Jersey City, and R. Floyd Clarke, of New York City, for plaintiff in error.

Carrick & Wortendyke, of Jersey City, for defendant in error.

GARRISON, J. In this ease the action is brought by a paving company to recover from the defendant the balance of the price of certain work executed under a contract between them. The work consisted in the paving of the defendant's stockyard. The defenses were that the certificate of the defendant's engineer was not obtained as required by the contract; that it was not waived; and that the work was not substantially performed by the plaintiff or accepted by the defendant. With respect to the engineer's certificate, the contract contained these provisions: The eighth section provided: "In case of any disagreement or dispute between the contractor and the stock yards company respecting the true construction or meaning of any specification, map, profile, or plan, the same shall be referred to and decided by the engineer, and his decision shall be final and conclusive; but should any disagreement or dispute arise relating to the true performance of any covenant or agreement, or the true value of extra work, because of a written requisition under the third mutual covenant, then and in either of such cases such disagreement or dispute shall be referred to three arbitrators, one to be selected by each of the parties, and the third to be selected by the two selected by the parties, and the decision in writing by a majority shall be final. Each party hereto shall pay one-half the expense of such reference."

The specification as to "payments" provided: "The balance, including the 20 per cent. reserved each month, to be paid upon the completion of the work to the satisfaction of the engineer, to be evidenced by his certificate to that effect."

There was testimony from which a jury might find that the work, when completed, met with the apparent approval of the engineer and of his authorized representatives who had supervised it, and that a bill, based upon estimates furnished by the latter with the statement that the work was "complete and satisfactory," was sent to the defendant in July, 1909, and was followed by some correspondence that related only to the time and method of payment. On August 17th the plaintiff was for the first time reminded that no certificate had been given by the defendant's engineer and was then likewise apprised that there were indications that the work had not been satisfactorily done. This communication of the defendant was immediately followed by a letter from its engineer in which he stated that the specification that the interstices between the blocks be completely filled with cement grout had not been complied with. The plaintiff thereupon brought suit on the contract, not the present action, but an earlier one, in which the defendant set up by plea the failure of the plaintiff to procure the arbitration provided for in the eighth section of the contract. Upon demurrer it was held by the circuit court that a compliance with this provision by the plaintiff was a condition precedent to its right to maintain an action. Plaintiff thereupon discontinued its suit and proceeded to arbitrate the dispute as provided in the contract. As this dispute involves the substantial controversy, it will be well at this point to state precisely of what it consisted. The contract specified as follows: "The proposed pavement shall consist of selected blocks, laid so as to form a fairly uniform level top; they shall be laid on a sand bed one inch thick; after the paving is completed, it shall be rammed to a uniform even surface, satisfactory to the engineer or his inspector; and, after having been so rammed, it shall be immediately covered with a Portland cement grout consisting of one part Portland cement and two parts clean sharp sand. This shall be spread dry over the pavement, leaving a surplus of at lease one-eighth inch to one-quarter inch in thickness. Water shall then be added, and, with the aid of brooms, this grout shall be swept over and all about on the paved surface until the joints and interstices between said blocks shall be completely filled. No blocks with badly broken faces will be accepted."

After the plaintiff had completed the pavement and after the defendant had begun using it for the yarding of cattle, it was claimed that the cement grout (a semifluid mixture of sand and cement) had not penetrated to the entire depth of the interstices between the blocks owing to the rising in such spaces of the sandy subsoil on which the pavement was laid, caused by the nature of the soil, the ramming of the blocks, and the putting on of the grout before the soil had subsided or dried out of the interstices. The plaintiff contended that it had performed the work in compliance with the specifications; that this, and not the result obtained, was the measure of its duty; that it was not responsible for the nature of the subsoil; and that the ramming of the blocks and the putting on of the grout "immediately" were expressly required by the contract.

The defendant, on the other hand, contended that, in addition to what was detailed in the contract, the plaintiff, in order to perform properly what was specified, should have raked out the sand from the interstices before putting on the grout. This was the dispute at the time the first action was brought and was the ground of the engineer's refusal to certify. After the first action was discontinued, this precise dispute was submitted to arbitrators appointed under the contract whose award sustained the plaintiff's contention as to all points; i. e., both as to its duty under the contract and its true performance thereof.

Upon the trial of the present action,...