On appeal from a judgment of the Supreme Court, Bergen Circuit.
For the defendant-appellant, Paul C. Supinski and John Francis Gough.
For the plaintiff-respondent, Hopkins, Vorburger & Dickson.
The opinion of the court was delivered by
WELLS, J. This is an appeal from a judgment entered on the verdict of a jury in the New Jersey Supreme Court. Bergen Circuit, in favor of the plaintiff, Schaefer, and against the defendant, Brunswick Laundry, Incorporated, hereinafter called the Laundry Company, in the amount of $3,349.64.
On August 27th, 1929, the Laundry Company entered into a written contract with Nicholas D'Elia, trading as the D'Elia Contracting Company, hereinafter called the general contractor, for the construction of a power plant. This contract provided, inter alia, that if the general contractor defaulted, the Laundry Company would have a right to complete the contract and hold the general contractor liable for any loss occurring by reason of such default. It was further provided that the work be completed within sixteen weeks, with a stipulation of $50 liquidated damages for each day elapsing between the appointed and actual time of completion.
On August 28th, 1929, the general contractor entered into a written subcontract with the plaintiff, Schaefer, for the erection of all structural steel work as required for the power plant. The subcontract provided that if Schaefer defaulted, the general contractor would have a right to complete the structural steel work and hold Schaefer liable for any loss occurring by reason of the default. If for any reason an extension of time for performance was desired by Schaefer, the same would be determined only upon request made in accordance with the terms of the subcontract. Final payment was to be made to Schaefer by the general contractor sixty days after satisfactory completion of the general contract.
For the purpose of performing his work, Schaefer rented certain equipment for use until the job was completed. The work continued until January 10th, 1930, when a strike occurred among the employes of Schaefer, and work was discontinued for a period of approximately nine weeks. During this time Schaefer was obliged to pay rent for the equipment and other sums to insure its safe keeping.
A meeting was called to adjust differences and was attended by Schaefer, the general contractor, Henry Sieminski (general manager of the Laundry Company), and certain representatives of the union of the strikers. As a result of lengthy discussion the strike was called off, but Schaefer refused to
continue performance unless he was paid for the rentals and charges accruing during the time of the strike. There was testimony (which was controverted) that Sieminski then orally promised to pay this amount, and instructed Schaefer to submit his bill to the architect to be checked.
The work was completed under the written contracts, and upon refusal of the Laundry Company to pay the rentals and charges, as above, this action was started by Schaefer against the Laundry Company and D'Elia, or in the alternative, Sieminski and D'Elia. A nonsuit as to D'Elia was entered before trial, and a nonsuit as to Sieminski was entered during the course of the trial, it being stipulated that Sieminski was acting as agent for the Laundry Company.
The complaint sought recovery not only on the oral promise or contract of Sieminski, but also on the theory that the Laundry Company was responsible for the strike. This latter ground was discarded at the trial, and no attempt made to allocate the blame for the strike. The jury returned a verdict for Schaefer ...