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National Surety Co. v. Board of Education of Clifton

Decided: February 2, 1934.

NATIONAL SURETY COMPANY, A CORPORATION, PLAINTIFF-RESPONDENT,
v.
THE BOARD OF EDUCATION OF CLIFTON, IN THE COUNTY OF PASSAIC, DEFENDANT-APPELLANT



On appeal from the Supreme Court, whose per curiam opinion is printed in 11 N.J. Mis. R. 225.

For the plaintiff-respondent, Frederick M. P. Pearse.

For the defendant-appellant, William B. Gourley.

Perskie

The opinion of the court was delivered by

PERSKIE, J. This appeal brings up for review a judgment of the Supreme Court, which in turn affirmed a judgment of

the Passaic County Circuit Court, directed by Judge Mackay, for the sum of $5,280 damages, and $2,508 interest, totaling $7,788 in favor of the respondent and against the appellant.

On August 23d, 1921, Faillice Brothers entered into a contract with the appellant for the erection of a school building in the sum of $131,000 with a provision of extra compensation for excavation of solid rock. The latter provision is the subject-matter of this litigation.

The specifications contained the following under numeral 12 and captioned "rock:"

"Large boulders shall be sunk below ground floor level in locations as directed by the architect, or shall be removed from off the premises. Should solid rock be encountered at level of bottom of walls, dress the rock to level surface and omit parts of footing as directed.

"If solid rock is encountered, same shall be removed from the premises at unit prices for blasting to be submitted in estimate."

The contractors' bid contained the following notation:

"Rock excavation that requires blasting add $4.00 per cubic yard over earth."

The proof disclosed that the total excavation was two thousand two hundred and one and three-tenths yards and that sixty per cent. thereof, about one thousand three hundred and twenty-one cubic yards, was hard rock. No blasting was done but the rock was removed by some unusual manipulation of a steam shovel. The architect certified payment of the contract price of $131,000 and the cost of this extra excavation work, amounting to $5,280. ...


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