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Kaplen v. Housing Authority

Decided: October 25, 1956.

A. KAPLEN & SON, LTD., A CORPORATION OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
HOUSING AUTHORITY OF THE CITY OF PASSAIC, A MUNICIPAL CORPORATION OF NEW JERSEY, DEFENDANT-RESPONDENT



Goldmann, Freund and Conford. The opinion of the court was delivered by Conford, J.A.D.

Conford

This is an appeal by the plaintiff, contractor for the erection of public housing in the City of Passaic by written agreement with the defendant, from the entry of a summary judgment in the Law Division in favor of the defendant in an action for damages allegedly sustained as a result of unjustified delay in delivery of the job sites by the defendant to the plaintiff. Defendant admits the delay but contends that the very contingency was anticipated by the parties in the written contract and that the agreement was that no damages would be recoverable by the contractor in such case but that it would be allowed only a corresponding extension of the date fixed by the contract for completion of the work. We are in essential agreement with the position of the defendant and are satisfied that the material facts were fully exposed by the affidavits submitted on the motion and dictated the disposition made by the trial court as a matter of law. Evans v. Rohrbach , 35 N.J. Super. 260, 269 (App. Div. 1955), certification denied Evans v. Matthews , 19 N.J. 362 (1955).

The project in question was in the nature of slum clearance, and the affidavits show without contradiction that defendant had to clear the various site areas of prior occupants before they could be turned over to the defendant as construction locations. The contract, which was entered into January 15, 1952 after public competitive bidding, for a price of $2,714,000, provided that the work should be commenced at the time fixed in the "first Notice to Proceed" which order "may also designate the first block, section or area, or the first building or buildings within a block, section or area, on which the Contractor shall commence work";

that "the entire work shall be fully completed within 550 consecutive calendar days after the time stipulated in the first Notice to Proceed"; that "the entire site will be released to the Contractor within 180 consecutive calendar days after the date of the first Notice to Proceed"; and, finally, so far as is here material, in paragraph 13, as follows:

"13. DELAYS -- DAMAGES

"(a) * * * Provided further that should the entire site not be released to the Contractor within the time specified in Section 1(a) (3) of the Special Conditions, the Local Authority shall, subject to the prior approval of the PHA, extend the time for completing the work by the number of days the delivery of the entire site has been so delayed.

(b) No payment, compensation or adjustment of any kind (other than the extensions of time provided for in (a) above) shall be made to the Contractor for damages because of hindrances or delays from any cause in the progress of the work, whether such hindrances or delays be avoidable or unavoidable and the Contractor agrees that he will make no claim for compensation, damages or mitigation of liquidated damages for any such delays, and will accept in full satisfaction for such delays said extension of time."

The first notice to proceed was given by defendant to the plaintiff on February 27, 1952, and subsequently such notices were given by the defendant as various areas on the site were cleared. There is no factual denial in defendant's affidavits of the statement in the affidavit of the executive director of the defendant to the effect that "the successive areas were released to the plaintiff by the Housing Authority as rapidly as the premises were vacated by occupants."

It is uncontested that full site delivery to plaintiff was not effected by August 25, 1952 as stipulated by the contract (180 calendar days after February 27, 1952) nor until January 20, 1953. On August 26, 1952 plaintiff wrote to the defendant, reviewing the contract terms and stating that the entire site was required to have been delivered to it by August 25, 1952 and that "many additional expenses will be incurred by us as a result of the construction period's being lengthened." The letter concluded: "It is, therefore, necessary for us to make 'time of the essence' of the contract * * *."

It is plaintiff's contention that the delay in site delivery, particularly because of the winter months involved, resulted in damages to it of $159,541.41 and it is for the recovery of this amount that this action is brought.

It is entirely plain to us that in language as clear and unambiguous as could fairly have been employed for the purpose the very contingency upon which plaintiff predicates its cause of action was contemplated by the parties and that it was expressly stipulated that in such case plaintiff should have no claim for damages but only a corresponding allowance of time to complete the contract. Such an allowance it has been granted. Any construction of the agreement which would give it the damages it seeks here would, in effect, put it unfairly and discriminatorily, and therefore illegally, in a better position than that which it voluntarily chose to enter into, and better, also, than that which all public bidders, actual and potential, for ...


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