Price, Sullivan and Foley. The opinion of the court was delivered by Sullivan, J.A.D.
[55 NJSuper Page 554] Plaintiff appeals from a judgment of no cause for action. The complaint filed herein seeks to compel defendant township, pursuant to an alleged agreement or at least on the basis of quantum meruit , to partially reimburse plaintiff for the expense of installing water mains in a section of defendant township.
In 1949 plaintiff, then owning a tract of land located between State Highway Route 10 and Route 5-N in defendant township, desired to develop the same for housing purposes. The tract had little frontage on either road and required the construction of all new streets and roads. Plaintiff proposed to develop its land in sections, with Section 1 located near State Highway 10 being the first section to be developed. At the time defendant operated a municipal water system which did not extend into plaintiff's lands, the nearest existing main being on Route 5-N at the other end of the tract from the proposed Section 1 development. To get public water to Section 1 it was necessary to lay mains across the entire tract. At the time plaintiff had a well in Section 1 and had laid some pipe therefrom in Glacier Drive, the principal street in that section.
On December 10, 1949 plaintiff and defendant entered into a written agreement under which plaintiff was to construct a road in Section 1 and install water mains therein. Plaintiff further agreed to develop the rest of the entire tract within two years and to construct roads and streets as shown on its development map and to install water lines. To insure performance on its part, plaintiff agreed to post a $60,000 surety bond.
The township on its part, among other things, agreed as follows:
"5. The Township does hereby agree that when the water lines and its appurtenances in Section 1 of the Glacier Hill Development, is connected to the Township water system as hereinabove set forth, it will enter into its usual water extension agreement with the Developer reimbursing it to the extent of four-fifths of the costs of said installation or four-fifths of the costs at which the Township could make said installation in said Section 1 of the Glacier Hill Development as shown on the hereinabove mentioned map, as of the date of this Agreement, whichever is the lowest."
It is this provision which underlies plaintiff's cause of action.
After commencing work plaintiff was unable to obtain the surety bond required, so that under the December 1949 agreement
it could not secure certificates of occupancy for six houses it had under construction in Section 1. On January 26, 1950, therefore, the original agreement was modified by eliminating the requirement of the surety bond and plaintiff agreed to convey the well and water mains it had built in Section 1 to the township and to operate the water system in the section. Plaintiff further agreed to complete road construction in Section 1 within the two-year period. On its part defendant township agreed to relinquish title to the well and water mains if the plaintiff connected its mains to the township mains at Route 5-N within the two-year period, provided plaintiff entered into the water extension agreement. Those parts of the December 10, 1949 agreement not changed by the modification were to remain in full force and effect.
It is undisputed that plaintiff completed the water main installation from Route 5-N to the Section 1 mains within the two-year period. This involved 7,800 feet of mains plus 11 hydrants. However, the water extension agreement referred to in the December 10, 1949 agreement was never consummated. The record does not indicate the reason for this. Since the hookup to defendant's water supply system was made, defendant has been supplying water through the mains in question and collecting water revenues. The trial court found that these mains have become part of the municipal water supply system.
In its complaint plaintiff alleged that the cost to it of installing the water mains in question was $36,774.85. At the trial, however, it was stipulated that the cost to the municipality for the same installation would have been $27,053.04.
Plaintiff's claim is based on the December 10, 1949 contract as modified or, in the alternative, on quantum meruit for the reasonable value of the work done. The trial judge found for the defendant. As to the contract of December 10, 1949, he found it void for uncertainty because it ...