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Moses v. Edward H. Ellis Inc.

Decided: April 24, 1950.


On appeal from Superior Court, Law Division.

For affirmance -- Chief Justice Vanderbilt, and Justices Case, Oliphant and Wachenfeld. For reversal -- Justice Heher. The opinion of the court was delivered by Wachenfeld, J.


A reversal is asked here based upon alleged error in the court's refusal to direct a verdict for the defendant on two grounds: (1) there was no legal obligation on the part of the defendant, and (2) assuming a legal obligation, there was no proof of any damages.

In 1936 a flood occurred in the City of Harrisburg, Pennsylvania, as a result of which it was decided to construct a new system to supply water for municipal purposes and in 1938 this project was approved by the City and the Public Works Administration of the United States Government.

A part of the work was embraced in "Contract No. 3 for the Construction of Clark Valley Dam." The contract involved forty-three items for which bids were submitted on a unit price scheme. The defendant corporation bid on all forty-three items and was awarded the contract in 1939. The contract itself was voluminous, embracing an entire book, and only the parts involved in this dispute are contained in the record before us.

On May 5, 1939, the defendant entered into a subcontract in writing with the plaintiff by which the latter undertook to do the concrete work called for in the principal contract. This subcontract concerns itself with items 14 to 25, inclusive, and 37 and 42 of the principal contract. Only items 16, 17 and 18 are in dispute. According to the agreement, the plaintiff, as subcontractor, agreed to furnish and deliver all materials and to do and perform all work and labor required, in accordance with the specifications. Paragraph 2 provided:

"In accordance and in conformity with the drawings and specifications for Contract No. 3 for the Construction of Clark Valley Dam and Appurtenances, which said drawings and specifications are hereby made a part of this agreement as fully and with the same effect as if the same had been set forth at length in the body of this agreement, -- the said sub-contractor hereby certifies that having made an examination of the said drawings and specifications and of the site of the work, said sub-contractor proposes to furnish * * *, and in the performance thereof said sub-contractor shall be bound to the contractor by the same conditions, regulations and provisions as are contained in the contract of the said contractor with the City of Harrisburg;

that said sub-contractor understands the quantities of work as shown herein are approximate only and are subject to increase or decrease, and further agrees that all quantities of work, whether increased or decreased, are to be performed at the following unit prices:

Item Unit Price Total

16 815 c.y. concrete $17.00 $13,855.00

17 1420 c.y. concrete 13.60 19,312.00

18 1730 c.y. concrete 17.00 29,410.00"

The concrete mentioned in the subcontract was to be placed in the excavations made by the defendant. The specifications relating to the excavating are set forth in "Section III, Excavation and Backfill," Paragraphs 105 to 118, inclusive, of the main contract. Paragraph 108 contained, amongst other things, the following provision:

"* * * Measurement for common excavation will be made between the pay lines indicated on the drawings or staked in the field and the ground surface, as indicated by the above mentioned survey. The Contractor shall remove material which has been deposited subsequent to the above mentioned survey by floods, rains or other causes, and no payment will be made for such excavation. The pay lines, as indicated on the drawings, indicate only the lines to which excavations and fill will be measured and paid for under this contract and are not intended to, and do not represent the actual slope to which excavation shall be made to safely perform this work. The actual slopes may be greater or less than those indicated, depending on the materials excavated and methods used in performing the work, but such changes will not change the measurement for payment from the original lines as specified above. The slopes of permanent excavations will be neatly trimmed to the established lines."

Paragraph 110, under the topic "Blasting for Excavation," provided:

"Blasting will be permitted only when proper precautions are taken for the protection of all persons, the work and property; and any damage done to the work or property by blasting shall be repaired by the Contractor at his own expense. All necessary precautions shall be taken to preserve the rock outside the lines of excavation in the soundest possible condition. Blasting may be done only to the depth, amount, and extent, and in such locations as will, in the opinion of the Engineer, neither crack nor damage the rock outside the prescribed limits of the excavation. No payment will be made for any rock excavation when it becomes necessary to excavate below or outside

of the grade lines or pay lines indicated on the drawings, solely due to injury caused by overshooting, improper blasting or carelessness on the part of the Contractor, and all rock thus removed shall be replaced by concrete at the expense of the Contractor."

The specifications for concrete work on items 16, 17 and 18 each contain the following or similar language:

"After rock excavation is made to neat lines, it shall be cleaned and concrete floor poured, after setting all ...

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