Jacobs, Eastwood and Bigelow. The opinion of the court was delivered by Eastwood, J.A.D.
This case illustrates the well-known risks inherent in oral contracts involving an expenditure of thousands of dollars. However, it demonstrates that there are persons still willing to undertake and assume that risk.
The oral contract entered into provided for the construction of a building to be used as a combination washroom and comfort station by occupants of trailers at the trailer camp of the defendants and a supplemental contract for work to include sidewalks, fire hydrants, incinerator, water lines with outlets, waste water or sewer lines with outlets, etc. The plaintiff asserts that payment was to be on the basis of cost plus commissions, totalling $37,541.97, on account of which defendants paid $26,500, leaving a balance due plaintiff of $11,041.97. The defendants assert that the plaintiff agreed to perform the necessary work and furnish the necessary materials for both the main and supplemental contracts for the sum of $26,500, which they fully paid to plaintiff. The defendants filed a counterclaim asserting in the first count thereof that the plaintiff agreed to erect "a building which was to contain a comfort station, washroom, etc., for the sum of twenty thousand ($20,000.00) dollars, which price was to include the furnishing of a proper and adequate water supply and sewer system, water mains, electrical outlets, heat units and plumbing, etc.;" that the plaintiff had breached its agreement with the defendants by using incompetent and unskilled labor and furnishing defective and substandard materials. And in the second count, which dealt with the supplemental contract for the "laying of small cement sidewalks, electrical outlets, water mains, fire hydrants, electric parts and assorted boxes, fabricating an incinerator, furnishing
backboard to the slop sink, etc.," asserted that the "plaintiff breached its agreement with the defendants in that it did not complete the aforesaid extras in a good and workmanlike manner; did not and has not performed certain of the extras, although the plaintiff has been fully paid therefore"; seeking judgment in the sum of $10,000 on the first count to compensate defendants for expenditures necessary to "complete, re-model, repair and re-alter the aforesaid building" and $5,000 on the second count "to complete the extras which should have been performed and completed by the plaintiff." The jury returned a verdict in favor of the plaintiff against the defendants in the sum of $8,011.82. It is from this judgment that defendants appeal.
The defendants argue several grounds for a reversal of the judgment against them. We deem it unnecessary to discuss and decide all of the grounds advanced by defendants. They resolve themselves into a contention that the trial judge erred in striking the testimony of two expert witnesses, Urquhart Ward and James De Genova, whose testimony defendants contend was properly admissible to support the allegations of the second count of the counterclaim that certain pipe known as Orangeburg pipe used in connection with the waste water line, was improper and defective material, in that it did not conform to the plumbing code of the City of Camden and that it would cost approximately the sum of $3,000 to replace it; and, further, that the court erred in charging the jury to disregard that portion of the counterclaim which concerned the "Orangeburg pipe."
It is interesting to note that at the trial when the witness Urquhart Ward, who was plumbing inspector of the City of Camden, testified that the Orangeburg pipe was not permissible for use in a waste water line under the Camden City code and when the other expert witness, De Genova, testified as to the cost of replacing the Orangeburg pipe with pipe that would conform to the Camden City plumbing code, their testimony was admitted without challenge by the plaintiff. However, at the end of the defendants' case, the plaintiff [13 NJSuper Page 110] moved that the testimony of these two witnesses be stricken, on the ground that the pre-trial order did not specify nor comprehend any claim by defendants of defective material in the waste water line laid by the plaintiff. This motion was denied, whereupon plaintiff proceeded to offer in rebuttal the testimony of Herman E. Hensgen, an official of the plaintiff-corporation, who testified that the oral agreement entered into by the parties specified the use of Orangeburg pipe for the waste water lines; that defendant, Charles Grip, was present and aided in the supervision of the laying of the Orangeburg pipe; that Grip never questioned the type of pipe that was being used and, in fact, Grip did not at any time, until the institution of this action, make any complaint that the Orangeburg pipe was defective and improper material for the purpose for which it was installed. It is significant that defendant, Charles Grip, did not return to the stand later and deny this testimony of the witness, Hensgen. The plaintiff contends that the counterclaim and the pre-trial order having failed to assert any such claim by the plaintiff, the defendants had, therefore, limited their claims and were precluded from introducing evidence to establish damages with respect to the Orangeburg pipe. The defendants contend that Rule 3:16, prescribing pre-trial procedure in effect at the time of the entering of the pre-trial order, should control the trial of the action, rather than the rule, as amended December 19, 1949, as contended by plaintiff. It seems to us that it is immaterial, so far as this issue is concerned, whether the rule in effect at the time of the entering of the pre-trial order or the amended rule is controlling. Assuming, arguendo , that the amended Rule 3:16 is applicable, an examination of defendants' counterclaim and the pre-trial order clearly evinces that it is the second count of the counterclaim and the statement with reference thereto in the pre-trial order that must be relied upon by the defendants if they are to succeed in their contention. It will be helpful to consider the allegations in the second count of the counterclaim and the pre-trial order. Defendants assert therein that the oral agreement for the extras,
which include the waste water lines in question, was breached by plaintiff "in that it did not complete the extras aforesaid in a good and workmanlike manner; did not and has not performed certain of the extras, although the plaintiff has been fully paid therefor." That portion of the pre-trial order which is obviously applicable to the second count of the counterclaim asserts "that the cesspools and the fire hydrants were not provided and that the sidewalks and drainage outlets were done in a poor and unworkmanlike manner." In the briefs of the respective parties and at the oral argument of this appeal, it clearly appears that the issue as to whether defendants were entitled to assert a claim for damages with respect to the Orangeburg pipe and introduce supporting evidence necessarily stems from a construction of the pre-trial order and the second count of the complaint and particularly that part of the pre-trial order which states that the " drainage outlets were done in a poor and unworkmanlike manner" (italics ours). The dispute on this issue between the parties centered around the question as to whether "drainage outlets" was sufficiently broad to include the pipe lines which conveyed the waste water from the trailers to either cesspools or a nearby creek. The defendants contend that these words are sufficiently broad to support the admission of the challenged testimony; that, if the pipe lines were not so included in that term, there would have been no outlet at all for the waste water sewerage. The plaintiff contends that the "drainage outlets" could not under any construction thereof be considered as the waste water pipe lines; that sewer outlets are the belltraps only and did not include the pipe line as well.
In considering the objective of the pre-trial rule, Judge Bolitho Laws, who has had a wide experience with pre-trial conferences and the subsequent course of action thereunder, in addressing the American Bar Association, stated:
"One of the vital, if not the outstanding, advantages of pretrial procedure is to take the trial of actions out of the realm of surprise and maneuvering, whereby an unwary counsel might see the just cause of his client lost. It may be romantic and charming to watch
the skillful trial lawyer as he lies in wait to pounce upon an uninformed and less skillful counsel, but the results frequently ...