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Paolucci v. 358 Market Street Inc.

Decided: March 20, 1961.


Lora, J.s.c.


Plaintiffs Theodore Paolucci and Joseph Paolucci, trading as Theodore Paolucci & Son, seek partial summary judgment against the defendant 358 Market Street, Inc.

Suit was instituted by the plaintiffs for balances due them for materials and labor furnished to the defendant and which involved construction by plaintiff building contractors of a post-office building in Saddle Brook, New Jersey, a bank building in Saddle Brook, New Jersey, and extensive alterations to an existing bank building in Lodi, New Jersey. Defendant admits all work contracted for has been satisfactorily completed.

Plaintiffs contend there is due them on all three jobs, after crediting the defendant with payment of $50,000, the sum of $89,928.65 together with interest, part of which sum

is represented by a past due note for $55,400, which note is the subject matter of the eighth count of the complaint.

Plaintiffs advance alternative theories to support their claims for specific sums due them for work done on each of the buildings aforesaid, contending that the specific amount claimed as being due them on each building is either the unpaid balance of a price fixed by contract with the defendant, or the unpaid balance of the reasonable value of services, labor and materials performed and furnished defendant.

The sums claimed to be due are, respectively, a balance of $48,700 for the post office building, $36,228.65 for the renovation of the Lodi branch bank building, and $5,000 for the construction of the new bank building at Saddle Brook. Defendant admits said balance of $5,000 is due and owing the plaintiffs on the new bank building job. Both parties admit there was only one written agreement, which was dated September 11, 1959 and covered only the construction of the Saddle Brook post office. This agreement provided, among other things, that "the building is to be constructed on the basis of cost (labor, materials, incidental fees, subcontractors costs) plus 10 per cent profit. If the contractor at any time feels that this job may exceed $65,000 due to unexpected costs or other reasons, then the owner should be contacted promptly before expending these additional amounts." The other two jobs were performed under oral agreements, plaintiffs contending that the Lodi alterations were to be done on a cost-plus basis and defendant contending that the work was contracted for at a fixed price. There is, as stated aforesaid, no dispute as to the total price for the Saddle Brook bank building and the $5,000 balance remaining on account thereof. The oral depositions of both Joseph Paolucci, one of the plaintiffs herein, and Irwin Silverman, an officer of the defendant corporation, indicate quite clearly there is a genuine and real issue as to the total contract price or the reasonable value of the labor, materials, and services furnished in connection

with both the post office building and the renovations of the Lodi branch bank building, so that summary judgment obviously does not lie Sokolay v. Edlin , 65 N.J. Super. 112 (App. Div. 1961). However, plaintiffs here seek, in effect, a partial summary judgment for part of the monies claimed to be due them on the aforesaid two jobs and for the $5,000 admitted by the defendant to be due the plaintiffs on the Saddle Brook bank building.

In this connection, however, defendant contends that pursuant to an agreement of accord dated March 17, 1960, which was entered into by the parties after discussions had regarding disputed costs of the materials and the work done on the buildings aforesaid, the promissory note for $55,400 with interest at 5% was issued in full satisfaction and discharge of all of plaintiffs' claims. Defendant further contends that the note for $55,400 was extended and replaced with a new note dated October 31, 1960 for $55,000.

Plaintiffs, in the seventh count of the complaint, seek rescission of the memorandum accord agreement of March 17, 1960 on the grounds of misrepresentation and lack of consideration and move for partial summary judgment on the fifth and eighth counts of the complaint which respectively set forth the $5,000 admitted by both parties to be due on account of the Saddle Brook bank building and the past due note for $55,400. Plaintiff Joseph Paolucci, in his affidavit accompanying the motion, states, "Defendant unequivocally admits the sum of $55,400., with interest is due," and relies for the same on the oral deposition of defendant's Assistant Secretary, Irwin Silverman, pages 40-41. However, a reading of the deposition of said Irwin Silverman indicates clearly Silverman's admission that $55,400 was due plaintiff was predicated upon the existence of a valid agreement of accord -- the same accord which plaintiffs now seek to rescind. Plaintiffs having attacked said accord agreement, a genuine issue of fact exists insofar as the sum of $55,400 is involved.

However, Silverman's deposition at pages 63 to 65, inclusive, and commencing with line 13 on page 63, does admit that before any compromise whatsoever, there was due the plaintiffs the sum of $65,000 for the post office building, the sum of $18,000 for the Lodi branch bank building, and the sum of $5,000 on account of the Saddle Brook bank building, or a total of $88,000. Both parties having admitted $50,000 was actually paid on account of all three buildings, plaintiffs contend there can be no question that there is due them at least $38,000, and they therefore seek in the alternative partial summary judgment for said $38,000.

R.R. 4:58-1 provides that a party seeking to recover upon a claim, counterclaim, or cross-claim may move for a summary judgment or order in his favor upon all or any part thereof or as to any defense. However, such provision must be construed in connection with R.R. 4:58-4 entitled, "Case not fully adjudicated on motion."

R.R. 4:58-3 provides that summary judgment may be rendered

"if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show palpably that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law. A summary judgment or order, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages."

R.R. 4:58-4 provides:

"If on motion under this rule judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that exist without substantial controversy, including the ...

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