On appeal from Superior Court, Law Division, Bergen County.
Lynch, Crane and Horn. The opinion of the court was delivered by Horn, J.A.D.
[166 NJSuper Page 468] Defendants United States Steel Corporation (U.S. Steel) and Bushwick Iron and Steel Company, Inc. (Bushwick) appeal from a judgment for $85,000 entered against them on the verdict of a jury following an extended trial. The sole issue submitted to the jury by reason of defendants' admission of liability was the amount of damages to which plaintiffs were entitled.
The essential facts giving rise to the action are not in dispute.*fn1 Since about 1962 plaintiffs Lawrence and Alan Seaman, partners in Seaman Marine Co., were in the general marine business, specializing in marine salvage in West New York, New Jersey. This work consists of raising and removing sunken obstructions in waterways. Plaintiffs also engaged in ancillary activities such as selling marine equipment, i.e. , barges, tugboats, cranes, tanks, winches and equipment anchors, and constructing and assembling various pieces of marine equipment.
In 1971 they decided to construct a floating crane of 100-ton capacity. A typical land crane was to be permanently affixed to the flat top of some type of barge or tanker. Plaintiffs purchased a tanker*fn2 and acquired a crane base and a separate arm or boom. Adaptations were made to each to fit them together and thereby to fabricate a floating crane barge.
The boom was 122 feet in length. Work was required to fit the boom to the crane base, because the boom was of a different manufacture from that of the base. Then the crane was to be fitted to the barge. In order to affix the boom to the crane base it was necessary to procure steel to fabricate a "heel plate" which would provide a strong linkage of the two. Plaintiffs had determined that the purchase of two seven-inch plates of steel would be the basis for an ideal design. Alan located a seemingly appropriate single seven-inch plate weighing about 500 pounds at the Brooklyn premises of Bushwick.
Plaintiffs went to Bushwick to view the plates. They had a general discussion with Bushwick concerning pieces they were going to have made for the boom, the specifications for the steel and whether or not Bushwick was going to rough-cut it for them. Bushwick told plaintiffs that the steel
was A36 plate. Plaintiffs explained to Bushwick the purpose for which they were buying the steel, but Bushwick stated that they were not sure if plaintiffs could use it for that purpose because Bushwick did not know the exact bearing quality. So Bushwick suggested that plaintiffs call U.S. Steel.
Plaintiffs called and explained to U.S. Steel the purpose for which they were buying the plates. U.S. Steel said that the pieces were acceptable for that purpose and were actually a better quality steel. It was then agreed that plaintiffs would purchase the plates as long as U.S. Steel supplied a certificate bearing the qualifying chemical analysis of the properties of the steel.*fn3 Plaintiffs paid Bushwick $410.45 for the steel.
Plaintiffs sought to affix the boom to the crane base by means of the heel plate fashioned from the steel supplied by defendants, but encountered various difficulties. After defendants were notified of the problem it was ascertained and admitted by a representative of U.S. Steel that the steel as supplied did not have the properties as certified.
Plaintiffs instituted this action against both defendants, sounding in tort and breach of contract. At the inception of the trial defendants admitted liability, on the assumption that the damages would be the same under either theory. As stated, the case was tried only as to damages, with the resultant award to plaintiffs.
Defendants contend: (1) the trial judge erred in submitting the issue of lost profits to the jury; (2) his charge on lost profits was erroneous; (3) since there was no proof adduced by plaintiffs that defendants either were notified of or could have reasonably foreseen the consequential damages claimed, the judge erred in ...