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John J. Carlin Inc. v. O''Connor

Decided: January 28, 1941.

JOHN J. CARLIN, INC., A NEW JERSEY CORPORATION, PLAINTIFF-RESPONDENT,
v.
PHILIP O'CONNOR, JAMES O'CONNOR AND THOMAS O'CONNOR, INDIVIDUALLY AND AS CO-PARTNERS TRADING AS O'CONNOR BROTHERS, DEFENDANTS-APPELLANTS



On appeal from the Supreme Court.

For the plaintiff-respondent, Charles Hood (Harry Shaffer, of counsel).

For the defendants-appellants, Nicholas S. Schloeder.

Wells

The opinion of the court was delivered by

WELLS, J. This is a suit for the payment of a premium for a surety bond furnished the defendants through the plaintiff company. The bond was issued in a regular form for the faithful performance of the defendants in connection with a contract for scavenger service and removal of garbage and ashes which the defendants had entered into with the Village of South Orange. This bond was to run for three years at an annual premium of $2,250. Work under the contract began March 1st, 1940, and as far as the record is concerned still continues. Defendants refused to pay the first year's premium and plaintiff brought this suit to recover the same. Defendants set up in their answer the defense that the contract between defendant and the Village of South Orange was illegal by reason of its failure to comply with the provision of R.S. 34:10-1 and that the bond and agreement to pay the premium was tainted with the same illegality and therefore null and void.

Upon motion to strike the answer, the trial court sitting as a Supreme Court Commissioner, ordered the same stricken as insufficient in law and directed the plaintiff to proceed as for want of an answer. At the same time, the defendants made an application to file a third separate defense setting up a compromise and settlement of the claim which concerned matters subsequent to the institution of suit and the filing of the answer. The court denied this application on the ground that the proof in support thereof did not establish an agreement to compromise which would result in an accord and satisfaction. Judgment was therefore entered in favor of the plaintiff in the amount of $2,388.47. It is from this judgment that the defendants appeal.

The first paragraph of R.S. 34:10-1 provides:

"All contracts made by or on behalf of the state or any county or municipality for the performance of work or the furnishing of material shall provide that the mechanics, workers and laborers while engaged in such work shall work no more than eight hours in any one day. It shall be unlawful for any state, county or municipal officer to make any such contract without such provision. It shall be unlawful for

any employer or other person to require or permit any mechanic, workman or laborer to work more than eight hours per calendar day, in doing such work or furnishing such material."

The act, after making additional provisions regarding working hours and wages for those employed on public works, provides that any official, or any contractor with a public body, or a person working under such a contractor, who violates the terms of the act shall, upon the complaint of the Commissioner of Labor, be adjudged a disorderly person and be subject to a fine of not less than $50 and not more than $175, or by imprisonment for not more than six months, or both in the discretion of the court. The act requires that complaints be made by the commissioner before a court of competent jurisdiction within six months of the date of the alleged violation.

The contract entered into between defendant and the Village of South Orange did not contain a provision that "the mechanics, workers and laborers while engaged in such work shall work no more than eight hours in any one day."

Defendants contend that this omission renders the entire contract illegal and that under the circumstances the defendants are not obligated to pay any premiums for a bond ...


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