On appeal from the Supreme Court.
For the plaintiffs-respondents, Whiting & Moore.
For defendant-appellant, Nicholas La Vecchia and Herbert A. Kuvin.
The opinion of the court was delivered by
WELLS, J. This is an appeal by the defendant from a judgment entered on a postea signed by Judge Porter, sitting as a Circuit Court judge in a Supreme Court issue, which postea was based upon the findings of Julian Berla, a referee to whom the case had been referred by consent.
The suit was to recover the sum of $3,695, which the plaintiffs claim is the balance owing by defendant to them on a contract for the construction of three-story brick building and four garages in the city of Newark, and for extras less certain allowances. Among the extras was a claim for $4,000 for the installation of a heating plant, which had been inadvertently omitted by the plaintiffs in making up their bid, which plaintiffs allege defendant agreed to pay; and also a claim for $1,375 (less an allowance of $400 for an omitted incinerator) representing the price for additional cost of erection occasioned by the bursting of a sewer pipe without any fault of plaintiffs, resulting in a cave-in of the cellar excavation, the filling of the same with water and making it impracticable for plaintiffs to continue with the construction of the building. This additional cost plaintiffs allege defendant agreed to pay. An answer was filed by the defendant in which he denied owing the plaintiffs anything. The first general defense was that plaintiffs failed to finish the contract on time, that the defendant on the request of plaintiffs for the payment of extras, refused to pay for the extras but counter-demanded
a sum for the loss of rentals caused by the delay in completing the contract; that plaintiffs failed to produce architect's certificate that work was done as per contract; that the painting was defective, the roof leaked, the cellar was not water-tight, piping was improperly covered, that steam valves were not installed in radiators as required by the contract, &c.; and that thereupon in consideration of the demands by the plaintiffs and the counter-demands by the defendant the plaintiffs and defendant mutually agreed that their respective claims should be satisfied by the defendant paying the plaintiffs $3,000, which the defendant says he did, and that the same was in full accord and satisfaction of plaintiffs' claims and demands.
There were no law points raised in the answer. The issue framed was, therefore, an issue of fact.
After the filing of a reply the parties consented to a reference. This reference is not in the usual form and, with the exception of the concluding paragraphs, pertaining to the payment of the expenses of the reference and to the entry of the rule in the minutes, is set out in full as follows:
"The above entitled cause being regularly on the daily call in this December term, 1931, and it appearing to the court that counsel for the plaintiffs and for the defendant have consented hereto, and it further appearing to the court that the matters in controversy between the parties hereto involve the alleged performance of and the alleged non-performance of the terms and provisions of a certain building contract and extra work thereunder, and also a complete accord and satisfaction of the alleged claims.
"It is on this 28th day of December, 1931, ordered, that the above matters in controversy existing therein be and they are hereby referred to Julian Berla, a competent architect, to ascertain and report to this court his findings of fact, after hearing all of the evidence submitted by the respective parties hereto and also ...