Clapp, Jayne and Francis. The opinion of the court was delivered by Clapp, S.j.a.d.
We have before us here two questions, upon which we -- as stated in our earlier opinion in this case, 35 N.J. Super. 226, 239 (1955) -- called for further argument.
The defendant, Borough of Carteret, as is more fully set forth in that opinion, had asked leave of the trial court to amend its answer so as to add various matters, including two cross-claims against its codefendant, Louis P. Booz, set out respectively in the second and third counts of the proposed amendments. The trial court denied the application with respect to the cross-claims. We reversed, except as to one point which we left open, namely, -- and this is the first question here -- whether the proposed cross-claims should be permitted with respect to 90% of (what we termed in the opinion) the "last six estimates" made by Booz.
The import of the question will not appear without some review of the circumstances. The action is by the plaintiff contractor against the borough for large sums allegedly due plaintiff in connection with certain contracts between it and the borough. Booz, the engineer named in the contracts, was joined as a defendant on the ground, among others, that he was guilty of conspiracy with the borough in making certain estimates. By the terms of the contract, Booz was directed to make, each month
"* * * an appropriate 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.
The borough's cross-claims charge Booz with fraud and conduct "equivalent to fraud." In one cross-claim, that set forth in the second count, he and the plaintiff are accused of "acting in concert," etc. , in perpetrating this fraud or its equivalent; and in the other cross-claim, he alone is charged with much the same misdoings. In both cross-claims it is alleged that he, in making the partial estimates, had certified to: materials never furnished by plaintiff; prices beyond those due it; and items improperly supplied in duplicate.
As we understand it, the affidavit submitted on the borough's behalf charges Booz with overcertification in the amount not only of $102,284.33 with respect to quantities of material, but also (and Booz' counsel seem not to have noticed this in making their first argument) of $233,912.45 with respect to prices.
Early in this action, the plaintiff, with the oral consent of the borough, secured a summary final judgment against the borough as to a part of its claims, namely, as to 90% of the last six estimates. The question here is whether in the face of that judgment, the cross-claims should be permitted as to 90% of these six estimates.
Booz argues that there are no facts establishing the charge against him of fraud or conduct equivalent to it. But the facts need not be established at this posture of the case. It might be noted, in passing, that the case has not, as yet, even reached the stage of the pretrial conference. The question now is whether it can be said from the affidavits, submitted by the borough on the motion to amend, that justice requires the amendment. R.R. 4:15-1.
What then does justice require here? Booz argues that as a matter of fairness the cross-claims should not be allowed because the borough would thus be suing him for what it, as a volunteer, had already paid to the plaintiff on the entry of the summary judgment. But -- looking first at the cross-claim stated in the second count -- we do not see why in the name of fairness we should say that this voluntary action taken by the borough benefiting one of two alleged confederates should operate to shield the other. And -- looking at the other cross-claim in which Booz is alleged to be solely at fault -- we find no reason either for saying that such action should furnish Booz with a shield there. It is not to be supposed that the borough paid the plaintiff knowing that the money was not due it.
It is claimed further that if the borough had acted with more diligence, the cross-claims would have been interposed before the entry of summary judgment and that in that circumstance ...