Goldmann, Conford and Haneman. The opinion of the court was delivered by Haneman, J.A.D.
[59 NJSuper Page 521] Home Owners Construction Co. (Construction Co.) appeals from a summary judgment in favor of Borough of Glen Rock (borough) upon a finding by the Law Division that there was no general issue as to any material fact, and that plaintiff had been paid in full as a matter of law.
Plaintiff's complaint consists of two counts. In the first count it alleges that on September 5, 1956, having submitted the lowest bid to the borough for certain work to be performed on Doremus Avenue, it entered into a contract with said borough. Accompanying said contract were certain specifications which were incorporated therein by reference. (The work was admittedly to be performed as a "State Aid Project," R.S. 27:15-1 et seq.). The first count further reads:
"4. On page 16 of these specifications, paragraph No. 24 reference is made to sub-base and roadway excavation, and also reference is made to additional sub-base material that might be needed which is to comply with the subsequent specifications dealing with sub-base materials.
8. During the course of excavation and the filling in of areas, the defendant requested of the plaintiff to do certain excess excavation in soft areas and to replace the removed excavation with stone, conforming to the specifications as previously handed to the plaintiff.
9. The plaintiff, Home Owners Construction Co., conformed to the request of the defendant, and on or about October 26, 1956 performed this additional work for the benefit of the defendant; the cost of such work amounts to $5,039.50 as set forth more fully in Schedule "A" attached hereto and made a part hereof.
10. The plaintiff on or about May 1, 1957 at the request of the defendant performed certain additional services at houses numbers 367, 375, 399, 411, 469 and 350 on Doremus Avenue in the Borough of Glen Rock.
11. On or about October of 1956 the plaintiff, Home Owners Construction Co., at the request of the defendant performed certain additional services, namely, installation of temporary driveway Entrances, patching of driveways and road areas and the patching of the new road area, all of which cost has not been paid for by the defendant.
13. The plaintiff, Home Owners Construction Co., did make formal demand upon the Borough of Glen Rock for the payment in full of these additional services, work and materials supplied to the Borough of Glen Rock in conformity with the contract entered into between the parties on September 5, 1956."
Plaintiff demands judgment on this count in the amount of $5,877.35.
The second count of the complaint repeats the allegations of the first count but seeks recovery on a quantum meruit basis.
Defendant, by way of answer, admitted the execution of the contract but generally denied the allegations of the complaint and, by way of affirmative defenses, alleged, (1) accord and satisfaction; (2) any labor and materials furnished as alleged by plaintiff were so furnished without lawful authority of the borough; (3) plaintiff executed an instrument, the legal effect of which extinguished the claim sued upon. Defendant moved for a summary judgment on the ground that "plaintiff has been paid in full for the monies allegedly due."
In connection with this motion for summary judgment, plaintiff filed an affidavit of William F. Van Schaik, its president. This affidavit reads, in part:
"5. It was discovered on opening the road that the road base was in a very poor and unstable condition. Frank Evans, Borough Engineer and John Smith, Borough Inspector advised the plaintiff corporation that it would be necessary to dig 2 1/2 to 3 feet deeper in order to remove the unstable element and replace it with 2 1/2 inch stone rather than with normal sub-base fill. The inspector for the state did not feel that this was necessary. Since this was a state aid job, it was not encompassed in the initial specifications. Frank Evans and John Smith advised the plaintiff corporation to proceed with the extra excavation and 2 1/2 inch stone replacement as they desired and that this additional cost would be paid for by the Borough separately and not under its state aid contract.
6. Subsequently during the course of the construction, Frank Evans, John Smith and Barney Smith requested that the plaintiff do additional and extra work which was outside of the initial contract bids with the agreement that this would be paid for by the Borough of Glen Rock.
8. I was advised by the said Frank Evans that since the extra work done would have to be paid for by the Borough and was not encompassed under the state aid job as bid, that insufficient moneys had been appropriated by the Borough to cover the extra work. He then advised that the method which had to be followed for us to be paid for our work was to sign a voucher for the work done in accordance with the contract only and limited to such work so that the Borough could recoup from the State of New Jersey that
portion of the price paid in accordance with the state aid program. He advised me that after the Borough recouped said money from the State that there probably would be sufficient moneys for the payment of the extras or if there were not sufficient moneys for the payment of the extra work that it would be included in the budget for the following year and paid at that time. He advised me that I should withhold the submission of the bill for the extra work done until after the state aid contract was paid for and the Borough had received its money.
9. As a result thereof, I followed the procedure suggested by said Frank Evans and advised Mr. Albion C. Deane, my associate in the plaintiff corporation, to sign the necessary vouchers which encompassed only the work which would be covered under the state aid program. This was in accordance with the request made by the said Frank Evans and with his statement that the extra work would be billed and paid for at a later date.
10. The Borough Engineer's certificate, the voucher and the draft were not intended to cover the additional or extra work and materials to be paid for by the Borough outside of the contract let under the state aid program but such additional items were specifically to be billed at a later date to be paid by the Borough separately." (Emphasis supplied.)
Defendant filed an affidavit of Barney Smith, Assistant Superintendent of Public Works and inspector of the Doremus Avenue job, in support of its motion for a summary judgment. The gist and effect of this affidavit is that plaintiff was paid in full for all work performed under the contract of September 5, 1956 and that in any event there was an accord and satisfaction.
After argument, the trial court granted defendant's motion for a summary judgment, finding that as a matter of law plaintiff had been paid in full. As noted, plaintiff appeals.
At oral argument before this court a number of issues were raised which were not argued below as grounds for summary judgment, nor asserted in the original briefs here filed. The resulting questions are of such a nature as to require an exercise of our original jurisdiction for a complete determination of the cause, R.R. 1:5-4 made applicable to the Appellate Division by R.R. 2:5. Pursuant thereto we have obtained the ...