Goldmann, Freund and Conford. The opinion of the court was delivered by Conford, J.A.D.
[39 NJSuper Page 94] This was an action by the plaintiff (hereinafter referred to as "Winfield" or "owner") for damages ensuing from alleged breach of contract by defendant (hereinafter referred to as "Middlesex" or "contractor") in the performance of an agreement to construct 1,240 concrete porch additions to dwellings of the owner for the price of $79,650. Defendant counterclaimed for payment of moneys due for 312 of the porches actually erected and for damages for alleged breach by the owner of the contract. At the trial in the Law Division a jury returned a verdict for plaintiff on the complaint in the amount of $11,500 and for the defendant on the counterclaim for $16,865, apparently representing the contractor's bill of $19,365 at the contract unit prices for the porches constructed, less an abatement of $2,500 for deficiencies in performance. This appeal by the contractor from the judgment entered on the verdicts stated raises a number of assignments of error by the trial court,
but our determination will require disposition only of the points that the court erred in denying defendant's motions for dismissal and for judgment as to plaintiff's claim and for judgment on the defendant's counterclaim for the full amount sought to be recovered for the completed porches.
The material provisions of the contract, entered into July 7, 1952, were these. Unit prices were specified for the various porches on the basis of size and incidence and number of steps. The porches were to replace preexisting wooden porches. Payment was to be "calculated by multiplying the number of units completed to the satisfaction of the Corporation [owner] by the unit price." Article 5 of the contract reads:
"The contract work will be inspected by the Winfield Mutual Housing Corporation, and will be rejected if it is not in conformity with the contract provisions. Rejected work shall immediately be corrected by the Contractor. When the work is substantially completed, the Contractor shall notify the Winfield Mutual Housing Corporation in writing that the work will be ready for final inspection on a definite date, at least 10 days thereafter, which shall be stated in such notice."
Under Article 9 partial payments were to be made as the work progressed, at the end of each calendar month, on estimates by the owner, subject to a 10% withholding until final completion and acceptance of all work. A provision concerning time for completion is not involved in this controversy. The only provision relative to specifications which is material on this appeal is the requirement in the contract drawings for foundation piers of a depth of two feet six inches on porches having steps. A dispute over the sufficiency of the cement mix was determined by the trial court in favor of defendant and does not concern us on this appeal.
The contractor began the work on July 28, 1952 and the owner had it inspected by an employee, Hall, until the latter's illness on August 19, 1952. He was succeeded by Orsini, a maintenance foreman, until October 6, 1952. Then Hall resumed his duties as inspector and continued as such until November 11, 1952, when the owner by letter directed the contractor to stop "until further notice, or indefinitely, by
reason of the fact that reports on our inspections as to materials and workmanship have not been favorable." The proofs show that Winfield's primary and only real complaint in this regard was that 195 of the 312 porches constructed by Middlesex had foundation piers less than 30 inches in depth. There is evidence that Winfield's executive director, Goldberg, complained to the contractor's president, Neiss, about the piers in August, 1952, yet subsequently wrote the latter to put more men on so that the job could go faster. Neither Goldberg nor either of the owner's inspectors ever rejected any of the porches or requested that the work on any of them be redone. Orsini explained that "we [owner] wanted to get the job done and so tried to allow as much leeway as possible"; also that he allowed a shallower foundation than 30 inches when he was satisfied the pier was "down to rock or good hard surface." It is undisputed that from October 6, 1952 until the stoppage on November 11 Middlesex constructed 54 porches in full and strict compliance with the contract, as evidenced by Hall's records and acknowledgment at the trial.
The contractor made demand for payment for the work it had completed but was never paid anything. There were conferences between the parties looking toward the possibility of adjustment of the differences and resumption of the work, but nothing came of them. There is no evidence that Winfield at any time called upon Middlesex to continue performance of the contract. Winfield tells us that this was because the defendant expressly refused to resume the performance of the contract unless it was paid in full without abatement for the deficiencies aforementioned and subject to the understanding that the porches to be erected would be "good porches" and not necessarily in strict compliance with specifications. We cannot find plaintiff's contention substantiated in the record. There could not be a refusal in the absence of a request, express or implied, for performance, and there is not a shadow of evidential support for the existence of such a request. The letter by Neiss of June 22, 1953, relied upon by plaintiff, was only a strong statement of justification
for defendant's demand for payment for the work completed and contained a separate voluntary expression of willingness to continue with the contract subject to cooperation by plaintiff in respect to a work schedule. The letter did, however, impliedly withdraw defendant's offer, by letter of June 10, 1953, to allow an abatement of ...