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Laurino Co. v. Daly Building Corp.

Decided: October 3, 1952.


Freund, Stanton and Conlon. The opinion of the court was delivered by Stanton, J.s.c.


[21 NJSuper Page 560] The appellant seeks the reversal of a judgment entered in the County Court, because of error in the admission and exclusion of evidence and in the refusal to charge certain requests to the jury; and because of judicial

indiscretion in the supervision of the trial which prejudicially affected the appellant.

The respondent's action is for the recovery of the balance due for certain work done for and materials furnished to the appellant. The claim may be divided into three parts. The first is based on an admitted oral agreement between the parties made in July 1950 for the extension of a street through property of the appellant by filling the area to a certain level and supplying a gravel surface, for the sum of $1,200. It is conceded that this contract was only partially performed. The fill work was completed but the surfacing was not done. The second part of the claim is based on an oral agreement allegedly made in October, 1950, whereby the appellant was to pay $3,200 for filling and rough grading the area surrounding 26 newly constructed houses. The appellant denies that there was such an agreement and contends that the respondent undertook to do this work for Clarence A. Pullen. It is admitted that there is a written contract dated July 3, 1950 between the appellant and Pullen whereby the latter was to erect the houses, and among other things do the filling and grading about them; this contract was filed in the office of the county clerk on July 17, 1950. The remaining item of the claim is for bulldozer service and fill supplied by the respondent to the appellant for which the sum of $203.10 is sought. On November 27, 1950, the appellant paid the respondent $1,500, but there is a dispute between the parties as to the nature and purpose of this payment.

In the course of the performance of his contract, Pullen was adjudicated a bankrupt and he abandoned the work in the first week of January 1951. There is proof that the respondent's failure to complete the street improvement was due to the failure of Pullen to complete his contract and it is conceded by the respondent that there should be an allowance of $420. Thus its claim on that item was reduced to $780. It is admitted also that on the contract for filling and rough grading about the houses, there should be a credit of

$70 to the appellant, leaving a balance of $3,130. The balance claimed at the trial was $2,613.10, and the jury returned a verdict in favor of the respondent for that amount.

Harry A. Lieblich, president of the appellant company, testified that in the fall of 1950 he assisted the respondent and Pullen in negotiating an agreement whereby the former was to do the filling and grading work about the houses for Pullen; that the $1,500 payment was made by the appellant to Laurino at the request of and for the account of Pullen; that after the failure of Pullen, no work was done on the development for several months; that early in March he made an agreement with the respondent whereby it was to complete the street work and the grading and filling about the houses for the sum of $1,700, but that it failed to perform any of the work, and that the appellant was required to do it, at a total cost of $3,220.

Robert Laurino, president of the respondent corporation, testified that it never had any contract with Pullen and that the contract with the appellant for filling and grading about the houses was made in October 1950. He denied the making of any agreement with the appellant in the spring of 1951. He admitted that on April 17, 1951 there was filed by his company in the county clerk's office a mechanic's notice of intention in connection with the premises of the appellant. He explained that he placed it on record at that late date because the road was not complete, there was grading to be done, there was a balance due him, and promises of payment had not been kept.

Pullen testified that he had no contract with the respondent for the work in question and that he did not ask Lieblich to assist him in negotiating one with Laurino; that he had a dispute with the appellant about the grading and filling because there was more of it to be done than appeared in the contract, plans and specifications; and that he did not authorize the appellant to pay the sum of $1,500 to the respondent on his account.

It was for the jury to determine what the agreements between the parties were, what work had been performed and what if anything was due to the respondent; also whether there was a contract between the respondent and Pullen for filling and grading, and if there were then the verdict would have to be against the respondent with respect to its claim for that work.

The appellant argues that there was error in the admission into evidence of a bill dated November 10, 1950, from the respondent to the appellant in which the following matters are set forth:

"Re-6th Avenue Project Long Branch price as agreed to

Road Labor & Material with 6" Compact Road Gravel $1200.00

Rough Grading at New Homes Bulldozer Service and Sup-

plying Necessary Fill--Price as agreed ...

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