This action was instituted by the Franklin Contracting Co. against the State of New Jersey for the alleged breach of a contract dated July 10, 1969, under the terms of which plaintiff agreed to perform certain construction work on a road known as Route 21, Section 4C, in the City of Passaic. It is undisputed that, among other things, plaintiff was to erect a viaduct and relocate an existing sewer line owned by the City of Passaic, all in accordance with the contract and accompanying specifications. It is further undisputed that defendant was to obtain all necessary title to or easements over the required lands.
Plaintiff contends defendant failed to obtain the same within the time contemplated by the parties, which failure caused plaintiff to be damaged and gives rise to this suit.
The action involves three claims for extra costs and losses incurred by the plaintiff in order to complete its contract, viz: (a) those suffered by virtue of an injunction issued by the Superior Court of New Jersey at the behest of a third party; (b) the costs ordered by the Superior Court to be paid to the City of Passaic for temporary pumping following an apparent rupture of that city's sewer line, and (c) the overhead and ordinary profit it lost by virtue of the failure of defendant to obtain access for plaintiff to go upon lands needed for plaintiff to perform its work.
Defendant denies liability and contends the language of the contract and the standard specifications incorporated by reference therein specifically preclude any and all recovery by plaintiff.
The matter came on for trial before the court sitting without a jury.
During the fall of 1970 the plaintiff was engaged in certain sub-surface work required for the construction of a viaduct referred to herein as the Weaselbrook Viaduct. It was using
pile-driving equipment to install sheeting in order to build cofferdams near property owned by Uniroyal Inc. and leased by United Wool Piece Dye and Finishing Company. These companies instituted a suit contending that the building of the viaduct and the method being employed by plaintiff to do so was causing immediate and irreparable harm to its property, and they succeeded in obtaining a temporary injunction from the Superior Court on November 1, 1970. This injunction enjoined plaintiff from proceeding with said project until the injunction was terminated on February 10, 1971 for reasons unknown to this court and immaterial to the issues here to be resolved. Plaintiff seeks to be compensated by defendant for its alleged losses during this 103-day court-imposed work stoppage, contending it was simply doing that which was required by the contract and as prescribed by the specifications. Plaintiff admits that after the injunction was lifted it returned to the site and completed the work in the same manner as it had been doing previously and in accordance with the original plans and specifications.
The court fails to see on what basis plaintiff could recover from this defendant. It is axiomatic that before a defendant may be required to pay damages it must be adjudicated that there is some fault on its part. None has been shown. It is admitted that plaintiff did what the contract required. If the work was being done in an improper manner, the contract specifically makes plaintiff liable to save defendant harmless. See article 1.6.2 of the standard specifications. The only reason for the stoppage was the action of the court over whom defendant had no control. The injunction was obtained by a third party. Defendant did not consent to the injunction nor could it have secured a dissolution of it. Peckham v. Industrial Securities Co., 1 W.W. Harr. 200, 31 Del. 200, 113 A. 799 (Super. 1921).
It has been conceded that when the contract between the parties hereto had been let defendant was under the impression
that it had a right to go upon the lands of United Wool where there was located a manhole in a certain sanitary sewer owned by the City of Passaic. The sewer ran under the Passaic River as it was then located and a 600-foot section of it was to be relocated by plaintiff pursuant to its contract with defendant. The pipe as located below the aforementioned manhole was to be the highest elevation in the new 600-foot section. The engineers for both parties testified that it was imperative that access be obtained to the high point in order to properly determine the pitch of the sewer line. Without such access the contractor could not proceed to perform its work as contemplated by the parties.
Sometime after the contract was awarded and plaintiff commenced its work it was discovered that a certain agreement between the landowner and the City of Passaic did not give access to the State. Even without the legal right to enter upon the lands of United Wool, plaintiff attempted to do so alone and in conjunction with representatives of the State, but access was denied by the landowner.
Since plaintiff was unable to continue its work, it appealed to defendant to ascertain another way of accomplishing that which the new sewer line was to accomplish. Following this appeal defendant on June 23, 1971 directed plaintiff not to construct the sanitary sewer until further notice, and in its letter of that date to plaintiff stated:
As of this date you have fill to be placed before you are ready to construct this line and furthermore there is sufficient work to be done at other locations to keep your equipment and men occupied.
On January 20, 1972 a memo was sent by defendant to plaintiff authorizing plaintiff to proceed with the construction of the 16" cast iron sewer line to Ramp L 2747.5' Rt., being the location of the manhole on the United Wool property.
During the interim between June 23, 1971 and January 20, 1972 plaintiff constructed a rock working platform near the existing sanitary sewer, and on January 13, 1972 it was
discovered by the Passaic Valley Sewerage Commission that several million gallons of river water was entering its treatment plant. Tests were conducted on January 24, 1972 and it was discovered that a rupture of the line in question had taken place, evidence of the same being observed at or near the said rock working platform.
Immediately thereafter the City of Passaic instituted an action in the Chancery Division of the Superior Court. Judge Kole ordered that plaintiff herein pay the City of Passaic the cost of pumping the sewage through a temporary connection to prevent the continued pollution of the Passaic River. Judge Kole did not determine the merits of the controversy nor did he determine who if anyone was at fault. Plaintiff has complied with the terms of the judgment and now seeks to recover the cost of the pumping, contending that if it did in fact rupture the sewer, it was the proximate result of this defendant directing plaintiff to proceed with its wet excavation out of sequence. Plaintiff further contends the sewer would not have ruptured if defendant had obtained the easement required when it should have, since plaintiff would have constructed the new sewer line, and the old one which ruptured would have been abandoned and removed.
It is true that Plaintiff was specifically directed to proceed with the construction of the new sewer, and it was called to plaintiff's attention that it had fill to be placed, but nowhere do I find any direction to dump rock at or near the location of the pipe. Plaintiff chose to proceed for its own benefit in spite of its right to wait until the required permission to enter upon the lands of United Wool was obtained.
This court makes no determination as to the cause of the sewer line rupture. If it was the result of plaintiff's actions, then plaintiff was negligent in not protecting the utility, as it was required to do by the contract with defendant. Art. 1.6.11. If it was not the result of the actions of plaintiff, then it would be pure ...