On appeal from Superior Court, Appellate Division, whose opinion is reported in 27 N.J. Super. 501.
For reversal -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For affirmance -- None. The opinion of the court was delivered by Burling, J.
The civil action from which this appeal developed was premised upon claims for breach of warranty growing out of a building contract. The Mercer County Court (Law Division), in which the action was instituted, on motion rendered judgment for the defendant, General Builders, Inc., and the plaintiff, Mechanical Devices Company, Inc., appealed. The Superior Court, Appellate Division, reversed. Mechanical Devices Co. v. General Builders, 27 N.J. Super. 501 (App. Div. 1953). We allowed certification on the defendant's petition therefor. 14 N.J. 350 (1954).
On August 17, 1951 the plaintiff and the defendant entered into an agreement whereby the defendant agreed to furnish labor and material for erection and construction of concrete foundations and floor slabs for three prefabricated storage warehouse buildings on the plaintiff's land at 141 Oakland Street, Trenton, New Jersey, plus additional labor and material as requested by the plaintiff during the course of the work. The agreed price for this labor and these materials was $16,392.03. It is not clear in any of the papers whether this contract was oral or in writing.
Plaintiff averred that it learned that the work was being improperly done "beginning at a time when the work was being done" and complained to the defendant, which, through its officers "continually warranted that the work was being done properly and the workmanship and materials were and
would be proper." The plaintiff alleged payment of the contract price and asserted in its complaint as supplemented by a more definite statement (see R.R. 4:12-5, formerly Rule 3:12-5), that "when defendant was pressing plaintiff for payment and plaintiff raised objections to the work that had been done by defendant, defendant gave to the plaintiff an instrument which purported to be a further guarantee in writing." This written guarantee was made in conjunction with the settlement hereinafter referred to. The agreement so adverted to reads as follows:
To Mechanical Devices Company, Inc.
Provided you pay your indebtedness to us and with interest as provided in an agreement dated February 11, 1952, in which agreement you, Abner A. Rednor, Hannah Julian and we are parties, the undersigned hereby guarantees for a period of one (1) year, commencing October 5, 1951 and expiring at midnight October 5, 1952, the concrete floor laid by the undersigned on your property at 141 Oakland Street, Trenton, New Jersey against defects in workmanship and materials which were agreed to be furnished by the undersigned to you, provided further, however, that said concrete floor has not received or does not receive during said period usage or loads in excess of what is normal for that type of concrete work. The burden of proof in the event of any claim being made with respect to the subject matter hereof that the floor during said period has not received loads or usage in excess of what is normal as aforesaid shall be upon Mechanical Devices Company, Inc. If the said concrete floor cracks or breaks during said period as a result of any such defect in workmanship or material from normal loads or usage, we agree to patch the same at our own expense.