On appeal from the Superior Court, Law Division.
For affirmance -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Burling and Ackerson. For reversal -- Justice Wachenfeld. The opinion of the court was delivered by Ackerson, J.
[6 NJ Page 364] The defendant, Terminal Construction Corporation, was under contract with the United States Government for certain construction work to be performed in the building of the Veterans' Administration Hospital at East Orange, and plaintiff, Peter W. Kero, Inc., was its subcontractor for the purpose of removing a certain stock pile of earth and rock from the hospital site. The agreement between plaintiff and defendant for the latter work is evidenced by two written contracts, both dated December 10, 1948, both containing the same job designation ("Job No.-C-112; P.O. No.-133") and both drawn up on defendant's
purchase order forms. In each document appears identical language providing that the plaintiff will "furnish all labor, materials, and equipment necessary to remove" a certain stock pile of surplus earth and rock from the site in question. One of the contracts states that the consideration for these services "shall be paid at prevailing standard rates, the total of which shall not exceed the sum of $18,000.00 * * *"; the other specified "the total sum of $9,500.00" as the price for the same services. Both contracts are signed by Peter W. Kero, as president of P.W. Kero, Inc., and Charles A. Cusick, purchasing agent for the defendant. In the negotiation and execution of these contracts, as well as many prior agreements between the same parties, plaintiff was represented by one person alone; he was its president, Peter W. Kero, who seems to have had complete control of the corporation and all of its business transactions.
Plaintiff rendered bills to the defendant, one dated December 31, 1948, for $5,000 and one dated January 8, 1949, for $4,500, both of which referred to the job number involved and defendant paid these bills by two checks, one for $5,000 dated February 25, 1949, and the other for $4,500 dated March 26, 1949. The second check, which was delivered by Richard N. Dinallo, president of the defendant company, to Mr. Kero personally, contained a notation on its face, "PO-133-Pd-in-full V.A."
It also appears that when the second check was delivered, Mr. Kero, as president of the plaintiff corporation, executed two releases in favor of the defendant. Both of these releases are on printed general release forms and provide that P.W. Kero, Inc., for the consideration of $1.00 and other valuable consideration discharges the Terminal Construction Corporation from all claims and demands whatsoever, in the usual terminology of such instruments. However, in one of these releases, immediately following the printed words of general release, appears the following statement in typewriting:
"Whereas two contracts were entered into between the parties hereto for work on the Veterans Administration Hospital at East Orange, New Jersey, and one is in the sum of $9,500 and the other
for a sum not exceeding $18,000.00, the purpose of this release is to release the releasee from all claims of both contracts and of all claims for extras, it being agreed that payment heretofore made in the sum of $9,500.00 is in full and all differences between the parties concerning the contracts, the work, or the claims by one against the other are released."
Both releases were concluded in the following manner:
"In Witness Whereof, the said party of the first part has caused these presents to be signed by its President and its corporate seal to be hereto affixed and attested by its Secretary the 4th day of June Nineteen Hundred and Forty-nine