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Gherardi v. Board of Education

Decided: December 24, 1958.


Goldmann, Freund and Haneman. The opinion of the court was delivered by Goldmann, S.j.a.d.


Plaintiff appeals from a summary judgment entered in the Superior Court, Law Division, on defendants' respective motions for an order dismissing the action because the complaint failed to state a claim or, in the alternative, for summary judgment on the ground that there existed no genuine issue as to any material fact.


On November 4, 1954 defendant Board of Education of the City of Trenton ("Board") entered into a written contract with plaintiff whereby he agreed to perform the general construction work on the Monument Elementary School for the sum of $500,850. Plaintiff was to complete his undertaking in 400 days. On the same date the Board entered into contracts with four other contractors for plumbing and drainage, heating and ventilating, electrical work, and structural steel and miscellaneous metal work, respectively. These latter contracts called for completion within 365 days. Every contract let by the Board provided that the materials and work were to be in accordance with the drawings and specifications, and these were expressly made part of the contract.

Paragraph 4 of plaintiff's contract provided that should he "be delayed in the prosecution or completion of the work by act, neglect, or default of the Owner [Board], of the Architect, or of any other contractor employed by the Owner

upon the work, * * * then the time herein fixed for the completion of the work [400 days] shall be extended for a period equivalent to the time lost by reason of any or all the causes aforesaid, * * *." The extended period was to be determined and fixed by the architects (defendants Micklewright & Mountford and Louis S. Kaplan), provided written application was made therefor within 48 hours of the occurrence of the delay. Paragraph 5 gave the Board the power to terminate the employment for failure to prosecute the work with promptness and diligence, upon certification of the architects and after written notice to the contractor. It appears that similar contracts were executed by the Board and the other contractors.

The specifications provided that the plumbing, heating and ventilating, electrical, and structural steel and miscellaneous work be done in coordination with the work of the general construction contractor and completed in such a way as not to hold up his work. The architects were to coordinate the work of the various contractors, and were given the customary powers exercisable by architects on projects of like nature. If, through acts of negligence on the part of the contractor, any other contractor or subcontractor suffered loss or damage on the work, the contractor agreed to settle with any such other contractor or subcontractor by agreement or arbitration.

Paragraph 3-45 of the specifications, dealing with "Delays-Damages," iterated the right of the Board, on written notice, to terminate a contractor's right to proceed with the work where he refused or failed to prosecute the work or any part thereof with such diligence as would insure its completion within the time specified or any extension thereof, or failed to complete the work within such time. In case the Board did not terminate the right of a contractor to proceed, he was to continue the work and pay liquidated damages of $20 for each calendar day of delay. The right of the contractor to proceed was not to be terminated, nor was he to be charged with liquidated damages, because of any delays in the completion of the work due to unforeseeable causes beyond his control and without his fault or negligence, provided

the contractor notified the Board in writing within ten days of the causes of the delay. Paragraph 3-45 then goes on to provide:

"* * * The Architects shall ascertain the extent of the delay and the Owner [Board] shall extend the time for completion of the work when, in the judgment of the Architects, the findings of fact justify such an extension. * * * Apart from extension of time for unavoidable delays, no payment or allowance of any kind shall be made to the Contractor as compensation for damages on account of hindrance or delay from any cause in the progress of the work, whether such delay be avoidable or unavoidable." (Italics ours.)

Paragraph 3-33 of the specifications, entitled "Personal Liability," provided that

"In carrying out the provisions of this Contract or in exercising any power or authority granted them by their position, there shall be no liability upon the Owner [Board] and his authorized representatives or assistants, either personally or as officials of the Owner, it being understood that in such matters they act as agents and representatives of the Owner."

There were a number of delays in connection with the heating and ventilating work, electrical work, and steel and metal work, so that the school was not finally completed and accepted until October 4, 1956, some 11 months after the completion date originally contemplated. Although during the course of the work plaintiff addressed a number of letters to the architects calling their attention to one or another item of material or work that was delaying the project, he admits that he never asked for an extension of time to perform. The affidavits indicate that the architects promptly took up with the other contractors involved plaintiff's complaints concerning delays as to various items which he contended were holding up his work, but that these matters were not taken care of as quickly as plaintiff might have desired. He requested and received final payment under the contract without protest as to any damages he might have suffered by reason of delay. He instituted the present suit exactly one year after the school was accepted by the Board.


The complaint is in nine counts. Plaintiff charges: (1) Active interference by defendant Board in the completion of his contract, as well as breach of contract, because of delays, failure to supervise the construction, failure to insist on strict compliance with contract terms by the other contractors, and failure to insist on and collect penalties for their delay. (2) Defendant Board, by its agents or servants, including defendant architects, breached its contract with plaintiff in failing properly to supervise and coordinate the construction work, and actively interfered with plaintiff's work, preventing him from completing it within time. (3) Defendant architect Kaplan, who was actively in charge of the project, defendant Bodine, as chairman of the Board's Committee on Buildings and Grounds and alleged to have been actively in charge of the project for the Board, and defendant Mather, an employee of the Board and alleged to have been actively in charge of the project as Superintendent of Buildings and Grounds, jointly and severally failed to coordinate the work on the school and interfered with plaintiff's performance of his contract. (4) Defendant Philip S. Slack & Co., who held the heating and ventilating contract, breached the contract and actively interfered with plaintiff's completion of his contract by failing to complete its work within the prescribed time and to coordinate its work with that of the other contractors. (5) and (6) Plaintiff makes the same charge as to defendant Brown Electric Co., which held the electrical contract, and defendant Craftsman Iron Works, which held the structural steel and miscellaneous metal work contract. (7) Defendant ...

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