Goldmann, Freund and Foley. The opinion of the court was delivered by Freund, J.A.D.
Plaintiff appeals from a final judgment of the Superior Court, Law Division. The trial court, sitting without a jury, ruled that plaintiff had not substantially complied with the terms of the contract between the parties for the construction of a porch. The court refused to take testimony concerning rescission of the contract and the reasonable value of the material supplied and labor performed.
The complaint was in two counts. The first alleged that on or about April 2, 1960 defendant entered into a written contract with plaintiff to supply and install "an insulated roof with California [ sic ] windows and jalousie doors upon their dwelling house at 49 Lexington Avenue, Borough of Emerson, N.J., at an agreed price"; plaintiff fully performed and installed the merchandise in accordance with the terms of the contract; payment had been refused; and judgment was demanded for the balance due on the contract. The second count alleged that in May 1960 plaintiff provided certain goods and services on defendants' "promise to pay the reasonable value of the same." Although plaintiff had fully performed its agreement, defendants refused to pay, "thereby being unjustly enriched for the reasonable value thereof." Each count demanded judgment against defendants jointly and severally for $2,280, interest and costs.
Defendants, by their answer, denied the allegations of the complaint and raised three defenses: the contract was voided by a subsequent agreement signed by plaintiff's president; plaintiff breached its agreement in failing to furnish the material or perform the work required by the terms of the contract and by representations of plaintiff's officers, agents or representatives; and plaintiff breached the agreement because "the work done by the plaintiff was of poor workmanship and of defective quality."
The pretrial order substantially reiterated the allegations of the complaint and answer, noting that plaintiff's first count was "on express contract"; the second, "on implied contract for the reasonable value of such goods and services."
The issues were stated to be "express contract, implied contract, unjust enrichment, reasonable value, validity of said contract and of non-performance of terms of said contract, damages."
At the trial, the parties stipulated that plaintiff and defendants had entered into a written contract on April 2, 1960, that the porch had been built and was attached to the house on defendants' property, and that the contract price was $2,300, with a deposit received of $20, leaving a balance due of $2,280.
Dominick DiCenzo, president of plaintiff corporation, testified that the room and roof were prefabricated and installed on defendants' premises in accordance with the contract. When counsel for plaintiff completed examination of DiCenzo on the first count, he stated his intention to offer proof on the second count relating to the reasonable value of the material and work performed. The trial judge ruled that, since plaintiff had offered testimony on the express contract, it could not proceed on the alternative count of reasonable value. Counsel for plaintiff reserved the "right" to offer testimony on rebuttal concerning reasonable value, after defendants had offered their proof.
Defendant Edward Ligotti testified that the porch did not conform with the contract. Soon after the porch was erected, Mr. Ligotti telephoned Mr. DiCenzo to tell him he was not satisfied with its construction. Specifically, defendant testified to the following deficiencies. The corners of the porch were "supposed to be miter closed" together; however, as constructed they
"didn't fit the porch right * * *. It's cut very crude, very raw, and then they fill it with caulking compound, which doesn't hold. * * * The result, you get air, it's not an insulated porch any more. It leaks from all over that way."
Despite the fact that the aluminum joints were "supposed to fit square, * * * practically every one of them" had openings
resulting from their "very rough cut and required caulking."
The doors were out of square, were too small by "half inch on both sides," and did not close properly. The hinges were not properly installed, were not countersunk -- leaving a "big gap" between the door and the side of the porch. The proper door checks were never installed, with the result that the wind blew the doors open. No "striker plates" were installed, making it impossible to lock the doors. The front door was "one inch short on the bottom. You can stick your hand through it."
The contract called for California windows, but did not specify the thickness of glass to be used. Defendant testified that in a conversation with DiCenzo he was promised "double thick windows" with "double strength glass to withstand the storms and everything." Plaintiff alleges that representations made by its officers may not be introduced into evidence because the contract expressly provided that it "shall constitute the entire agreement between the parties hereto." Plaintiff argues that, as a result of this contract clause, defendants abandoned in the pretrial order the defense based upon representations made by plaintiff's agents. The term "California windows" was not defined in the contract, and evidence from outside the contract was admissible to explain and construe the proper meaning of that phrase. Garden State Plaza Corp. v. S.S. Kresge Co. , 78 N.J. Super. 485, 496-7 (App. Div. 1963).
Plaintiff installed only single strength windows with the result that "cold can get through very easily" and the porch was not insulated. Moreover, "out of the 13 windows, full windows, there's about 5 screens that the screens are torn apart when they put the center bar in." In ...