On appeal from the Supreme Court.
For the appellants, Samuel Koestler.
For the respondent, Vincent S. Haneman.
The opinion of the court was delivered by
PERSKIE, J. The question for decision is whether the trial judge misconstrued, as urged, the contract in issue.
Appellants, Kingston Trap Rock Co. and Lambertville Quarry Co., corporations of this state, the former shall be hereafter referred to as Kingston and the latter as Lambertville, sued defendant, Eastern Engineering Company, also a corporation of this state, which shall be hereafter referred to as Eastern, to recover the contract price for stone they allegedly furnished Eastern under a contract between Kingston and Eastern dated August 6th, 1942. The complaint consists of two counts.
The first count relates to the claims of Kingston. It alleges that pursuant to its contract Kingston furnished Eastern with 32,598.62 tons of stone, which Eastern accepted and for which it agreed to pay at the rate of $1.50 a ton; that of this total tonnage, 20,900.51 tons were furnished to and accepted by Eastern on or before December 31st, 1942, and Eastern paid for same; that the remaining 11,698.11 tons were furnished between January 1st, 1943, and March 9th, 1943, and as so furnished were accepted but not paid for by
Eastern; and thus that there was due and owing to Kingston the sum of $17,547.16 plus interest.
The second count relates to the claim of Lambertville. It alleges that pursuant to the stated contract (August 6th, 1942) Lambertville furnished Eastern, at its request, 14,003.22 tons of stone at the agreed rate of $1.38 a ton, the difference of twelve cents on each ton being the allowed difference in the freight rates as provided by the contract; that of this total, 9,275.2 tons were furnished to and accepted by Eastern on or before December 31st, 1942, and Eastern paid for same; that the remaining 4,728.02 tons were furnished between January 1st, 1943, and March 9th, 1943, and were accepted but, as with Kingston's claim, were not paid for by Eastern; and that thus there was due and owing to Lambertville $6,524.66 plus interest. Kingston joined in this count as plaintiff, in the alternative, in the event it would be determined that the claim of Lambertville resides in Kingston under the contract.
Eastern denied liability. Additionally, it sought to recover from Kingston, by way of counter-claim, the damages it allegedly suffered because of Kingston's breach of the contract. More specifically stated, the alleged breach was that Kingston did not furnish between 500 to 700 tons of stone a day as it had contracted to do notwithstanding that it had been advised that such daily supply was vitally necessary in order for Eastern to complete its contract with the United States of America for the construction of two parallel rubble jetties at the Delaware Bay entrance to the Cape May County Canal, and notwithstanding that frequent demands were made upon Kingston to comply with its contract with Eastern, and notwithstanding that Kingston was advised that its failure to do so was causing it (Eastern) delay in completing the construction of the jetties with resultant money loss which Kingston would be called upon to satisfy. The alleged money loss of $32,128 is made up as follows: (1) $22,718 expended for additional equipment and labor, (2) $7,410 increased costs for hauling and trucking, and (3) $2,000 excess costs for general office overhead.
Kingston denied liability on the counter-claim. Of its
additional six separate defenses but three (first, fifth and sixth) are admittedly embraced in the like numbered grounds of appeal here argued.
The first separate defense concedes its contractual obligation to furnish approximately 500 to 700 tons of stone a day during the months of August, September, October and November, 1942, but asserts that Eastern refused to order or accept such supply and hence waived any right or claim for damages for the non-delivery in the specified quantities; the fifth is that it was not obliged under the provisions of the contract ("Contingencies") to furnish stone in any specified quantities after December 1st, 1942; and the sixth is that under the ...