Morrison, J.d.c., Temporarily Assigned.
Hampshire House is a 22 story, high-rise apartment building located at 1590 Anderson Avenue, Fort Lee, New Jersey. Prior to June 29, 1971 Carmelo Luppino, president and sole principal of defendant Hampshire House, Inc., and Cosimo S. Papadia, president of plaintiff Curtis Elevator Co., Inc., (Curtis) entered into negotiations involving the sale and installation of three elevators in Hampshire house. As a result of these negotiations, which included both terms and price, a contract was entered into on June 29, 1971 executed by Luppino and Armand Domenchetti, the chief construction supervisor of Curtis. The basic terms of the contract were that Curtis would supply and install three elevators in Hampshire House for a total price of $158,000. No date was specified for completion of the elevators. Additionally the contract provided for three months maintenance by Curtis at no cost to Luppino.
The contract also contained a provision commonly known as a "strike clause," the pertinent part of which reads:
We [Curtis] shall not be liable for any loss, damage, or delay caused by strikes, lockouts, fire, explosion, theft, floods, riot, civil commotion, war, malicious mischief, act of God, or by any cause beyond our reasonable control, and in any event we shall not be liable for consequential damages * * *
It should be noted that both parties are highly skilled in their respective trades. Luppino has thirty-one years experience
in the construction industry and had previously built at least 5 high-rise buildings for himself and 10 to 15 buildings for others. Similarly, Curtis is a company of long standing in the business of installing and servicing elevators. Prior to the installation in Hampshire House, Curtis had worked on four other buildings of up to eight stories constructed by Luppino since 1963.
In November 1971 Curtis commenced work on the installation of all three elevators in the lower floors. The upper floors, including the housing for the hoist machinery, was not yet complete. Estimated time for completion of the project was set by Curtis at 65 weeks, barring unforeseen difficulties.
Work on the elevators proceeded uneventfully until July 1, 1972 when Local 1 of the International Elevator Construction Union went on strike, effectively halting all elevator installations within a 35-mile radius of New York City. This strike affected all companies hiring union elevator installers and lasted until February 1, 1973. At the time of the strike the elevators were working on a temporary basis, with temporary controls and platforms but no cars.
Luppino testified that prior to the strike in April or May 1972 Papadia promised to have one elevator working by August 1, 1972. Papadia denies any such agreement, nor is there any evidence that such a modification was supported by additional consideration.
Subsequently, on October 11, 1972 Luppino hired a nonunion company, Lavin Elevator, consisting of Mr. Lavin and his son, to complete the job on a time basis. Plaintiff Curtis agreed to supervise Lavin, supply materials and approved Lavin as competent. Additionally, Curtis offered to give Luppino a $3,000 per car (or $9,000) credit, which he accepted, to cover the cost of Lavin's work.
Working part-time, it took Lavin approximately six weeks to complete the first elevator, which was ready for service sometime in December 1972.
The second and third were finished in February and April, respectively. Lavin ultimately billed Luppino ...