For affirmance in part and reversal in part -- Chief Justice Weintraub, and Justices Burling, Jacobs, Francis, Proctor, Hall and Schettino. Opposed -- None. The opinion of the court was delivered by Jacobs, J.
The Law Division denied motions for summary judgment by the defendant Geo. H. Brewster & Son, Inc. and the third-party defendants Morris Goodkind et al. Their appeals, pursuant to leave, are now before this court.
In March 1955 the State Highway Department entered into a contract with the corporate defendant (Brewster) for certain construction on Route 42, Section 12-B, North-South Freeway, from Station 212 to Route U.S. 130. In May 1955 Brewster subcontracted to the plaintiffs (Bedrock) the job of installing pilings in conjunction with three
bridge projects along the route. The subcontract incorporated by reference the conditions of the main contract between Brewster and the Highway Department and the Department's Standard Specifications and Supplementary Specifications for Road and Bridge Construction. Bedrock began its pile driving operations using a No. 1 Vulcan Steam Hammer and when it had driven the timber piles to a depth of 15 feet it states that it reached a point of "practical refusal" which it defines as the point the piles could no longer be struck by the hammer without splintering and "brooming." The third-party defendant Goodkind, who was then Director and Chief Bridge Engineer of the State Highway Department, was of the opinion that the safety of the bridge being constructed required a penetration of 25 feet rather than 15 feet. He directed that if necessary to obtain such penetration, a water jet in combination with the pile hammer be used. That was done, the penetration of 25 feet was obtained, and the work was completed.
Bedrock claimed that the extra penetration of 10 feet entailed additional labor and materials not contemplated by its subcontract with Brewster and for which it was entitled to extra compensation. Brewster submitted the claim to the Highway Department which rejected it in a letter dated March 23, 1956. Thereafter Bedrock filed a complaint in the Law Division against Brewster. In its first count it sought recovery of $20,917.63 on a book account. This amount was subsequently paid and the count was dismissed. In its second count it sought a contract or quantum meruit recovery of $58,502.71 for the extra work done and extra material furnished to obtain the increased penetration. In its third and fourth counts it repeated its claim of $58,502.71 alleging that Brewster had "illegally, arbitrarily and fraudulently" required it to perform the extra work and furnish the extra material and had arbitrarily, illegally and fraudulently conspired with representatives of the Highway Department to prevent it from completing its contract until it performed the extra work and furnished the extra material.
On April 24, 1957 Bedrock filed an amended complaint which undertook to specify the alleged illegal, arbitrary and fraudulent conduct and which designated the representatives of the Highway Department as Morris Goodkind, aforementioned, Karl T. Thomas, Senior Bridge Inspector, Curtis D. Weller, District Bridge Engineer, and Lawrence Petersen, Director and Chief Bridge Engineer.
Brewster filed an answer and counterclaim in which it alleged that Bedrock had not performed its subcontract and had instituted its action maliciously and without foundation. Thereafter Bedrock moved for an order granting summary judgment and striking the counterclaim but its motion was denied. Brewster then moved for leave to file a third-party complaint against Goodkind, Thomas, Weller and Petersen alleging that the extra work done and extra material furnished by Bedrock was at their insistence and that they should consequently pay any judgment which might be entered in favor of Bedrock against Brewster. The motion to file the third-party complaint was granted and was followed by a motion for summary judgment by the third-party defendants. The trial court denied their motion and leave to appeal was granted to them by the Appellate Division. While their appeal was pending, this court certified it on its own motion and suggested that Brewster move for summary judgment in the trial court. Brewster did so but its motion was denied and it thereafter took an appeal which has been argued in this court along with the appeal of the third-party defendants.
Brewster contends that under the terms of the subcontract, Bedrock was not entitled to any extra compensation for the penetration from 15 to 25 feet. It refers primarily to Article 4.4.3 of the Standard Specifications which reads, in part, as follows:
"Foundation piles have been designed to carry a certain load, and a certain pile length, based on available information of the subsurface conditions, has been assumed in preparing the estimate of quantity. All piles, however, unless otherwise directed, shall be driven to practical refusal as determined by the Engineer, and the
contractor shall determine the actual length of untreated timber piles required by driving test piles of greater length than that assumed in the estimate."
Brewster points out that Bedrock's subcontract lists the various linear footages which are the total lengths of the various types of piling called for by the contract and that by dividing this figure by the number of piles to be driven the approximate length of the piles is readily computed to be approximately 25 feet; and it stresses the Engineer's determination that the contemplated penetration of 25 feet was necessary for the safety of the bridge. On the other hand Bedrock points out that Article 4.4.3 provides that "Timber piles shall be driven with a gravity or a steam hammer or, if permitted by the Engineer with a combination of hammer and water jet" and that the timber piles in the instant matter were driven by hammer to 15 feet, a point of practical refusal; it contends that the Engineer did not determine that the 15 feet was not a point of practical refusal but directed a deeper penetration notwithstanding that practical refusal had been obtained.
Brewster places additional reliance on provisions in the Supplemental Specifications which Bedrock contends are inapplicable. It refers to Article 4.4.3 which contains a provision that "All concrete piles are to be driven with a steam hammer having a capacity sufficient to produce a penetration satisfactory to the Engineer," and also a provision that "If the required penetration cannot be obtained by the use of a hammer the contractor shall provide for jetting at his own expense." Bedrock contends that these provisions apply only to concrete piles and have no application to timber piles. Article 4.4.4 provides that "The contractor shall not make any claim for additional compensation due to any increase or decrease in listed quantity of bearing piles or due to the use of water jets in ...