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Beraidino v. Great American Indemnity Co.

Decided: September 27, 1934.

JAMES BERAIDINO & SON, INCORPORATED, APPELLANT,
v.
GREAT AMERICAN INDEMNITY COMPANY AND CHARLES W. OWEN, RESPONDENTS



On appeal from the Bergen County Circuit Court.

For the appellant, A. C. Hart (Daniel Combs, of the New York bar, on the brief).

For the respondents, William J. Morrison, Jr.

Parker

The opinion of the court was delivered by

PARKER, J. The suit is by the principal contractor for a state highway viaduct, in Bergen county, against a subcontractor and the surety of the subcontractor, for damages on the ground, as claimed, that the subcontractor failed to complete his contract. At the trial the plaintiff moved for a directed verdict of $21,500 and interest, being the amount of the subcontract. This motion the court denied, and gave the case to the jury. To the charge plaintiff entered only one exception, which is argued. The jury brought in a verdict for the defendants and, on motion of plaintiff, were polled, with the same result. There was a counter-claim filed by the defendants, but this was ignored by the jury and, apparently by the court; so that there is no judgment thereon, although the plaintiff has alleged error with respect to this counter-claim.

As to the facts, the plaintiff's principal contract was to build a concrete viaduct according to plans and specifications which need not be considered in detail. The defendant Owen was the subcontractor for the carpenter work, which work consisted, in general terms of supplying material for, and building, and later taking down and removing, the wooden forms in which the concrete was to be poured. The total cost

of the subcontract, as has been said, was $21,500, against which Owen was to credit $3,000 for certain lumber and materials already on the job, and the balance in money was to be paid "for the faithful performance of the carpentry work herein mentioned in weekly installments to the amount of ninety per cent. [of] the work completed during the previous week including labor and materials in place."

On the evidence the jury were entitled to find that during the progress of the work there was an error with respect to the construction of the forms, and that part of the work had to be taken down and removed and rebuilt; and the dispute was over the question whether Owen, the subcontractor, was responsible for the error and required to do this work over again. Owen refused to go on unless he was paid, the plaintiff refused to pay him and, as a result, plaintiff took over the Owen contract, had the work done by someone else, and brought this suit.

There are eight grounds of appeal, some of which are unavailable for procedural reasons. For example, the first ground of appeal is that the trial court refused to direct a verdict in favor of the plaintiff-appellant. A sufficient answer is that the court was not asked to direct a verdict generally in favor of the plaintiff-appellant, which would mean an instruction to the jury that the plaintiff was entitled to recover, leaving it for the jury to say how much the plaintiff ought to recover. Such was not the motion. The motion was to direct a verdict for $21,500 or the full amount of the defendant Owen's contract price, and interest. We fail to see how that can be regarded as the absolute measure of damages in any event. But however this may be, the exception was to the refusal to direct as requested; and the ground of appeal is addressed to a refusal to direct generally, which the plaintiff did not ask. Apart from this, we think the case was for the jury in both aspects and that the judge properly left it to them.

The second ground is that the trial court refused to nonsuit the counter-claim of the defendant. As there was no

judgment on this counter-claim one way or the other, the matter seems ...


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