Clapp, Jayne and Francis. The opinion of the court was delivered by Clapp, S.j.a.d.
We are concerned on this appeal with two questions: did the trial court err in refusing to open a summary judgment entered for the plaintiff and against the defendant borough as to 6 of the 23 counts of the complaint -- the remaining counts not having as yet been reached for trial; and did it err in denying the Borough's application to amend its answer so as to add thereto certain separate defenses, counterclaims and cross-claims.
Plaintiff had contracted to construct for the defendant borough a sewage treatment plant and other facilities and, by a separate contract, to furnish and erect certain structural steel, all on a unit price basis (that is, without fixing an overall price). The other defendant, Louis P. Booz, an engineer designated in the contracts as the borough's representative, was directed therein to make, each month
"* * * an approximate estimate of the value of the work done since the preceding estimate and ninety (90%) percent of the amount of such estimate shall be promptly paid the" plaintiff.
When in Booz' opinion the work was completely performed, he was to submit a certificate and a final estimate of the value of the completed work, and payment was then to be made to the plaintiff of the balance remaining due, with certain deductions. But there was this important proviso stated in the contract:
"All prior partial estimates and payments shall be subject to correction in the final estimates and payments."
Booz made 13 partial estimates under the general contract and 1 under the steel contract, and the borough paid 90% of each, some $1,700,000. Thereafter Booz certified partial estimates Nos. 14 to 18, inclusive, under the general contract and No. 2 under the steel contract (we have designated them herein, for short, as the "last six estimates"), but these the borough declined to pay. This suit followed, and Booz never made any further certificates.
The six counts of the complaint, on which the summary judgment was taken, are for the 90% (total $340,000) claimed respectively as to each of the last six estimates. In other counts the plaintiff sued not only for the remaining 10% allegedly due on partial estimates Nos. 1 to 18 on the general contract and Nos. 1 and 2 on the steel contract, but also for work done but not certified to, as well as for large damages and other items. Its demands totalled $1,800,000.
When the application for summary judgment was moved, the borough obtained an adjournment of two weeks to enable it to study a report of Philip S. Miller, an engineer of considerable experience, who for over a month had been conducting an investigation of the project apparently in behalf of an association of industries located in the borough. In the two-week period the borough's counsel and Miller conferred as to the motion. The upshot was that on the adjourned day, the borough not only put in no defense to the motion, but, it is important to observe, orally consented, through its attorney, to the summary judgment, which is final in form and includes in its terms the formulary prescribed
by R.R. 4:55-2. That judgment was for $340,000, and the borough thereupon paid it.
Eight months later, the borough moved to open the judgment and amend its pleadings as stated above, relying on an affidavit of still another engineer retained four months after the judgment. This appeal is from the order denying that motion.
THE EFFECT HERE OF R.R. 4:55-2.
The summary judgment was entered as to a fraction (90%) of a small part of the sum allegedly due on the contracts, a variable fraction at that -- that is, a fraction of a partial estimate which was subject to revision in the final estimate. We need not decide whether under R.R. 4:55-2 the trial court may endow such a judgment with finality.
See 6 Moore's Federal Practice (2 nd ed.), at p. 8, 232, n. 12, dealing with a "partial adjudication" of a claim; at p. 220 as to whether the court's certificate of finality in such a case is nugatory; and at p. 239 suggesting that doubts be resolved in favor of appealability. As to whether under the rule a "split final judgment" may be rendered only with respect to a separate, entirely distinct claim, arising out of a transaction differing from that involved in other claims joined in the action, see Town of Clarksville v. United States , 198 F.2d 238, 240 (4 Cir. 1952); Dyer v. MacDougall , 201 F.2d 265, 267 (2 Cir. 1952); Leonidakis v. International Telecoin Corp. , 208 F.2d 934 (2 Cir. 1953); United States Plywood Corp. v. Hudson Lumber Co. , 210 F.2d 462, 465 (2 Cir. 1954); Reeves v. Beardall , 316 U.S. 283, 285 (1942); cf. Kuly v. White Motor Co. , 174 F.2d 742, 744 (6 Cir. 1949); Magliaro v. Modern Homes, Inc. , 115 N.J.L. 151 (E. & A. 1935).
Nor need we stop to decide whether the parties can by their consent transform a non-appealable interlocutory judgment (if this be such) into an appealable final judgment.
We pass these questions; they have not been raised by counsel. Here, as stated, the borough's attorney consented to the entry of the judgment as a final judgment, and the borough then paid the plaintiff the moneys due on it. The borough thereby waived the right, of which its counsel was cognizant, to have entered the usual revisable interlocutory order; and it cannot now be heard to say that the moneys so paid by it may be recovered back by it on the ground that this was such an order. For such relief as it is entitled to, it must look to R.R. 4:62 (as to which see Point III, infra).
A waiver has often been defined in our cases as a voluntary relinquishment of a known right. See in general Long v. Board of Chosen Freeholders, Hudson County , 10 N.J. 380, 386 (1952). While this definition has been subjected to criticism, 3 Williston, Contracts (rev. ed.) , §§ 678, 679, Ewart, Waiver Distributed (1917), nevertheless we think that under the circumstances here the doctrine of waiver ...