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Fred J. Brotherton Inc. v. Kreielsheimer

Decided: October 28, 1952.

FRED J. BROTHERTON, INC., A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
LESTER A. KREIELSHEIMER, TRADING AS DELESON STEEL COMPANY, DEFENDANT-RESPONDENT. LESTER A. KREIELSHEIMER, TRADING AS DELESON STEEL COMPANY, PLAINTIFF-RESPONDENT, V. FRED J. BROTHERTON, INC., A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-APPELLANT



Freund, Stanton and Conlon. The opinion of the court was delivered by Conlon, J.c.c. (temporarily assigned).

Conlon

This is an appeal from a judgment for $28,000 in favor of Lester A. Kreielsheimer, trading as Deleson Steel Company (hereinafter referred to as Deleson) against Fred J. Brotherton, Inc. (hereinafter referred to as Brotherton), entered on the verdict of a jury in Superior Court, Bergen County.

The Deleson suit was instituted in the Bergen County Court and the Brotherton suit in the Superior Court. An order of consolidation was entered and the causes tried together. At the pretrial conference it was agreed that the matter be submitted to arbitration and the arbitrators returned a finding for Deleson. This finding was vacated by the Superior Court, Law Division, and on appeal the order vacating the award was affirmed. Brotherton, Inc. v. Kreielsheimer , 8 N.J. 66 (1951). The case thereupon proceeded to trial. Both parties claimed damages against the other for delays incident to the performance of building contracts.

In January 1947 Brotherton received a general contract from the United States Government for the construction of five buildings at the Franklin Delano Roosevelt Hospital at Peekskill, New York. In February 1947 Brotherton also received two general contracts from the Board of Education

of Great Neck, Long Island, for the construction of two school additions, one at the Lakeville School and the other at the New Kensington School. Brotherton gave Deleson a sub-contract on each of the three jobs under which Deleson was to furnish and erect all of the structural steel. Time was made the essence of the contracts, and it was provided that Deleson was to be ready to start erection on specified dates and that Brotherton was to have the premises ready for the steel work on those dates. The suits were based upon the alleged breach of these time provisions. Brotherton contended that Deleson had delayed the furnishing and erection of the steel on all five buildings, which delays resulted in consequential damages in substantial amounts. Deleson, on the other hand, claimed damages for delay on the part of Brotherton only on the Peekskill job. It also claimed a balance of $18,747.05 on the contracts, which balance was admitted by Brotherton.

The claims of the respective parties were submitted to the jury as a single issue so far as damages were concerned, and they were instructed to find the net amount due. In that respect, without objection, the court charged the jury as follows:

"In any event, regardless of the claim for damages, you must allow in your verdict for the sum of $18,747.05 which it is agreed is owing by the Brotherton Company to Kreielsheimer. That amount would be your starting point. To it you will add any damages that you find Kreielsheimer is entitled to recover from Brotherton and from it you will take or deduct any damages that you may find he should pay to Brotherton; but that is the basic amount to start with."

The jury rendered a verdict in favor of Deleson in the total sum of "$28,400, $18,747.05 base, $9,652.95 damages," and it is not disputed that the last amount was based upon the damages alleged to have been sustained by Deleson with respect to Building No. 2 of the Peekskill job. The total claim of Deleson in that respect was $11,758. Whether or not an off-set was credited to Brotherton for its damages cannot be determined from the form of the verdict. However,

since the question before this court is the validity of the verdict in favor of Deleson for its damages due to Brotherton's delays, it is unnecessary to discuss the many other facets of the case having to do with Brotherton's claim.

The appellant's main ground for reversal concerns the admission into evidence, over its objection of a volume entitled "Steel Construction Manual of the American Institute of Steel Construction." This book was comprised of two main sections entitled: (1) "The American Institute of Steel Construction Specifications"; and (2) "The American Institute of Steel Construction Code of Standard Practice for Steel Buildings and Bridges."

The situation arose in this way. The contracts between the parties for the Peekskill job on which Deleson's claim for damages was based, expressly incorporated the terms of the prime general contract between Brotherton and the Government, including the plans prepared by the Government and the federal specifications. Section 12-1 of the federal specifications, under the ...


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