Conford, Kilkenny and Leonard. The opinion of the court was delivered by Kilkenny, J.A.D.
The Superior Court, Law Division, granted summary judgment in favor of defendant township in a suit by plaintiff contractor to recover damages sustained by it as the result of delays in the performance of its contract to install municipal sewer pipe lines. The township was held not liable, as a matter of law, because of provisions in the contract exempting it from any and all claims for damages due to delays in performance, including delays in completion caused "by any act or neglect of the Owner [township] or the Engineer * * * or by changes ordered in the work."
Plaintiff appeals from the summary judgment. It contends that the exemption (from damages due to delays) provisions in the contract were not intended to and do not absolve the township from liability for delays due to the township's failure to have the work site fully available when plaintiff was directed by the township engineer to proceed with the job.
Plaintiff's position is that in submitting its bid on July 18, 1961 it contemplated and had a right to assume, and was assured by the township engineer after bid submitted, that the work site would be completely available when it was directed to proceed, and there was nothing in the specifications or contract form indicating any possible unavailability. The specifications provided for a ten days' notice to proceed and required performance within 80 days after notice to proceed with the work had been given. The gist of plaintiff's claim for damages is that, after plaintiff as successful bidder entered into contract with the township on August 1, 1961 and was directed by the township engineer on August 4, 1961 to commence work on August 14, 1961, it found upon moving its equipment, materials and work crews on the job that the
work site was not fully available. Some of the easements for the pipe line right-of-way had not yet been procured. As a result, plaintiff was allegedly not able to proceed with the operation in an orderly, continuous and economic fashion; work stoppages ensued for want of the easements needed to proceed uninterruptedly; the job wore on through the cold season with increased costs due to weather conditions, and the contract was not fully performed until June 15, 1962. Thus, a job undertaken and contracted to be completed within 80 days from August 14, 1961, required ten months for performance at greatly increased costs, to the damage of plaintiff.
During the progress of the work, plaintiff protested the additional expense to which it was being put due to the delays. It was directed to proceed and was told that its claim "will be reviewed upon completion of the work under the contract." Thereafter, its claim for additional compensation because of the delays was denied. Plaintiff's suit in the Law Division followed, with the result first noted above.
For the purpose of the motion for summary judgment only, and without conceding the ultimate truth of the facts asserted, defendant did not dispute in the trial court and does not dispute here that (1) plaintiff was directed by the township engineer to proceed at a time when the work site was not fully available because the township did not have at the inception of the job all the required easements for the pipe line right-of-way; (2) there were delays in performance for want of all the easements; (3) the job scheduled for completion within 80 days was not finished until ten months after commencement; and (4) plaintiff sustained damages by reason of the delays. Defendant's position is that, even assuming those facts to be true, the board provisions of the contract exempting the township from all claims for damages due to delays justify the award of summary judgment in its favor.
With reference to the subject of "delays," the contract provided in article III, paragraph 12:
"EXTENSION OF TIME: The Owner shall have the right to defer the beginning or to suspend the whole or any part of the work herein contracted to be done whenever, in the opinion of the Engineer, it may be necessary or expedient for the owner so to do. And if the Contract [ sic ] be delayed in the completion of the work by any act of neglect of the Owner or the Engineer, or if [ sic ] any employee of his or of any other contractor employed by the Owner, or by changes ordered in the work, or by strikes, lockouts, fire, unusual delay by common carriers, unavoidable casualties, or any cause beyond the Contractor's control or by any cause which the Engineer shall decide to justify the delay, then for all such delays and suspensions the Contractor shall be allowed one day additional to the time herein stated for each and every day of such delay so caused in the completion of the work, the same to be ascertained by the Engineer, and a similar allowance of extra time will be made for such other delays as the Engineer may find to have been caused by the Owner. No such extension shall be made for any one or more of such delays unless within ten days after the beginning of such delay a written request for additional time shall be filed with the Engineer. No claim for damages or any claim other than for an extension of time as herein provided shall be made or asserted against the Owner by reason of the delays hereinbefore mentioned.' (Emphasis added)
Plaintiff argues that availability of the work site is so fundamental an implied condition that, upon its being notified to proceed, it had a right to assume, in the absence of specification otherwise, that the entire work site was then available and the foregoing provision as to delays was not intended to cover delays occasioned by the township's failure to ...