On appeal from the Middlesex County Court of Common Pleas.
For the appellant, Stanley S. Dickerson (George S. Burton, of counsel).
For the respondent, Edmund A. Hayes and John T. Keefe.
Before Case, Chief Justice, and Justices Heher and Colie.
The opinion of the court was delivered by
COLIE, J. The Borough of South River appeals from a judgment in the sum of $2,568.72 in favor of Utility Construction Company entered in the Middlesex County Court of Common Pleas.
Utility Construction Company is in the road-building business and bid on certain work which the Borough of South River had advertised for bids. The contract was awarded to Utility and upon completion of the work there was paid by the borough all but $5,615.43 that Utility alleged to be due. Prior to the entry of judgment, a further payment was made, reducing the sum in controversy to the amount for which judgment was entered.
The appellant sums up its various grounds of appeal into two propositions as follows: (1) the court below erroneously refused to grant defendant's motions to nonsuit the plaintiff or to direct a verdict in favor of the defendant; and improperly allowed the jury to determine whether, in supplying the excess tonnage, the plaintiff had substantially complied with or performed the contract so as to entitle it to additional compensation. (2) The court below erroneously allowed the jury to determine whether the deviation from the contract and specifications was permissible, or authorized by or waived by the defendant. The contract between Utility and the borough provided that Utility was to perform the work "in accordance with the said specifications" which were annexed to and made a part of the contract.
Turning to the specifications, we find that they provide under the heading "Scope of Work" as follows:
"The work contemplated by these specifications shall consist of grading and preparing the surface of the following streets by scarifying, scraping, and rolling, so that the finished pavement shall have a 4" crown on all streets under 30 feet in width from curb to curb, and a 6" crown on all streets 30 feet or over in width from curb to curb. Grades, lines, and other engineering work necessary for the preparation of these streets will be furnished by the proper Borough authorities to the Contractor. After the sub-grade for pavement is prepared and compacted, a prime coat of R.T.-2 shall be applied, averaging one-half gallon per square yard. Following this application, a top surface of 1 1/4" bituminous concrete Type T shall be furnished, delivered, and applied in accordance with standard State Highway specifications. All streets shall be surfaced from curb to curb and in the
case of streets or sections of streets where curbs have not been constructed, the Contractor shall furnish and install temporary 2" plank curbing which shall be placed at the proper curb grade, as designated by the Engineer. This ...