On appeal from the Essex County Circuit Court.
For the plaintiff-respondent, Nicholas La Vecchia.
For the defendant-appellant, Edward R. McGlynn.
The opinion of the court was delivered by
WELLS, J. This is an appeal from a judgment entered in the Essex County Circuit Court, in favor of the plaintiff and against the defendant, Spring Street Realty Company.
A voluntary nonsuit was entered as to the defendant Peter Steiger.
The parties had a written agreement for the erection of a building for a specified sum. While this work was in progress the parties made an oral agreement for some additional work on a building adjoining the one under construction. This work was to be done on a cost plus basis.
The matter was referred by the Circuit judge to a referee, a dissent and reservation of jury trial being duly entered. The referee reported in favor of the plaintiff for the full amount claimed plus interest. Exceptions were taken and the case tried before Judge Mountain and a jury, resulting in a verdict for the plaintiff.
The complaint alleged in paragraph 1, that:
"On or about May 4th, 1927, the defendants, Spring Street Realty Company and Peter Steiger, or one of them, entered into a contract with the plaintiff, whereby plaintiff agreed to furnish labor and supply necessary new material and whereby defendants, or one of them, agreed to pay plaintiff the cost of the labor and new material furnished, plus five per cent.
thereof for operating expenses, plus ten per cent. ...