Daniel J. Brennan, McLean and Ewart. The opinion of the court was delivered by Ewart, J.s.c.
[21 NJSuper Page 228] This is an appeal from a final judgment entered in the Bergen County Court on December 5, 1951 for damages of $1,687.70, plus costs, in favor of plaintiff-respondent and against the defendant-appellant, and a judgment of no cause for action on the defendant's counterclaim against the plaintiff. The verdict of the jury in favor of the plaintiff was for $1,580 with interest from October
10, 1950, and a verdict of no cause of action on the defendant's counterclaim.
The complaint is based upon the employment of the plaintiff, a consulting engineer, by the defendant corporation, whereby plaintiff was authorized to design and manufacture molds to be used in the production by defendant of insulated shipping containers which were to be fabricated of fibre-glass mat, polyster resins, and cardboard, at an agreed price of $1,800 for the job, the agreement providing that the defendant was to produce a quantity of not less than 24 sample units of said molds, with one complete unit to be delivered not later than September 25, 1950. A written memorandum of said agreement, dated September 15, 1950, referred to in the amended complaint, was annexed to the amended complaint and was admitted in evidence as Exhibit P-1. The written memo further provided that the defendant should pay the plaintiff as a supervisory and consultation fee 50 cents for each unit of said containers thereafter produced by the defendant.
Plaintiff's amended complaint is divided into three counts as follows: In the first count, he alleges an express verbal contract between the parties entered into August 14, 1950 calling for a fixed price of $1,800 plus a further fee of 50 cents for each shipping container produced by defendant, later modified by agreement of the parties to include certain changes for which it is claimed the defendant agreed to pay for additional services rendered and materials supplied by the plaintiff; alleges the defendant defaulted its obligations under the agreement, thereby preventing the plaintiff from performing, and demands as damages, not the contract price of $1,800 plus extras, but "the value of plaintiff's services, together with the value of the materials supplied under the contract as modified * * *."
The second count is based upon a quantum meruit for the value of plaintiff's services.
The third count is for an accounting by defendant of the number of shipping containers produced by defendant coupled
with a demand for damages of 50 cents for each container produced, but this count was abandoned by plaintiff at the trial. (D114A)
In both the first and second counts of his amended complaint, plaintiff alleges the value of his services rendered plus the value of materials furnished by him to be the sum of $2,350; gives credit for a $400 payment on account made by defendant; and demands damages of $1,950.
It may be noted, in passing, that while the first count of the amended complaint is based upon an alleged verbal agreement which included a fixed price of $1,800, the demand for damages in that count is for the value of plaintiff's services and not for the contract price, plus extras. The plaintiff first pleads an express verbal agreement calling for a fixed price and then anomalously switches over in his demand for damages to quantum meruit.
Defendant by its answer admits that after negotiations between the parties an agreement was reached, as evidenced by the written memo of September 15, 1950 (Exhibit P-1); denies that the plaintiff produced the molds contemplated by said agreement; denies the contract reached was ever modified by verbal agreement or otherwise after September 15, 1950; denies the plaintiff performed his contract as agreed and admits that it advanced to the plaintiff the sum of $400 of the agreed contract price of $1,800.
By way of counterclaim, defendant seeks a judgment against the plaintiff for the $400 advanced by it to the plaintiff, because of the alleged failure of the plaintiff to fulfill its contract, and the further sum of $600 representing the value of certain labor and materials supplied by defendant to the plaintiff at the latter's ...