On appeal from Superior Court, Law Division, Atlantic County.
Gaulkin, Deighan and Stern. The opinion of the court was delivered by Deighan, J.A.D.
These consolidated appeals present a common legal issue: When the general contractor on a construction project terminates one of its subcontractors for non-performance, does the general contractor (or project owner) thereby become liable to pay the terminated subcontractor's subcontractors who fully performed its subcontract? The trial judge in each case denied recovery. We affirm.
The facts are not in dispute. On October 1, 1981 Millmak Associates (Millmak), a joint venture consisting of co-venturers Piermak Associates (Piermak) and Equitable Life Assurance Society of United States (Equitable), entered into a written construction contract with Kravco, Inc. (Kravco), for the construction of "Ocean One," a shopping mall on Millmak's pier along the Atlantic City Boardwalk. Under the construction contract, Kravco was the general contractor and Cope Linder Associates (Cope Linder) the architect. Under a separate agency agreement, Cope Construction Company (Cope Construction) was to assist Kravco in the performance of its duties as general contractor.
On May 6, 1982 Kravco entered into a written subcontract with Peyton Contractors, Inc. (Peyton), to install framing and wallboards as well as to do painting and related work. On
October 27, 1982 Peyton entered into a sub-subcontract with plaintiff Insulation Contracting Supply to supply and install insulation for a consideration of $215,000 including extras. Plaintiff undertook its sub-subcontract and on January 28, 1983 received a $30,000 payment from Peyton.
On February 25, 1983, because of a default in performance, Kravco terminated the subcontract with Peyton. At that time plaintiff had substantially completed its sub-subcontract and three days later, on February 28, 1983 plaintiff fully completed its obligation under the contract. Plaintiff's work was accepted and was not a factor involved in the default of Peyton by Kravco.
Plaintiff received no further advances under its subcontract and consequently filed a complaint in the Law Division, Atlantic County against Peyton, Kravco, Equitable, Cope Linder and Cope Construction for $185,000, the balance due under its sub-subcontract. Kravco, Equitable, Millmak, Cope Linder and Cope Construction moved for a summary judgment supported by affidavits of Myles H. Tanenbaum, a general partner of Piermak and Richard Spoenlein, a project manager employed by Cope Construction. Plaintiff filed a cross-motion for summary judgment and Peyton filed an affidavit executed by its controller Gary Wertheimer, to "clarify certain facts with regard to the two pending Cross Motions." On August 10, 1984, after argument,*fn1 Judge Perskie delivered an oral opinion, granting defendants*fn2 summary judgment dismissing the complaint and denying plaintiff's cross-motion for summary judgment. Subsequently, on December 24, 1984 a consent judgment for $185,000 plus interest was entered in favor of plaintiff against Peyton.
GAR Equipment Corporation (GAR), also a sub-subcontractor of Peyton, instituted a separate action against Millmak, Kravco and Peyton in the Law Division, Middlesex County. The procedural and factual backgrounds are essentially the same as those in the appeal of Insulation Contracting and Supply. Following cross-motions for summary judgment in that matter, on October 15, 1984 Judge Reavey granted defendants' and denied GAR's motion. On March 5, 1985 a consent judgment was entered in favor of GAR and against Peyton for $20,534.03.
Plaintiff presents the following issues:
I. BY ELECTING TO TERMINATE PEYTON (THE SUB-CONTRACTORS), DEFENDANTS-RESPONDENTS (THE OWNERS-GENERAL CONTRACTORS) BECAME RESPONSIBLE TO PAY DIRECTLY THE INVOICES OF PLAINTIFF-APPELLANT (THE SUB-SUBCONTRACTOR).
II. THERE DOES EXIST PRIVITY OF CONTRACT BETWEEN PLAINTIFF-APPELLANT AND THE DEFENDANTS-RESPONDENTS IN THIS CASE ARISING FROM THE CONTRACT DOCUMENTS THEMSELVES.
III. THERE DOES EXIST PRIVITY OF CONTRACT BETWEEN PLAINTIFF-APPELLANT AND DEFENDANTS-RESPONDENTS SUFFICIENT FOR THE PURPOSE OF MAINTAINING THIS CAUSE OF ACTION AS A RESULT OF THE THIRD-PARTY BENEFICIARY STATUS OF THE PLAINTIFF-APPELLANT.
IV. PLAINTIFF-APPELLANT IS ENTITLED TO MAINTAIN A DIRECT CAUSE OF ACTION AGAINST DEFENDANTS-RESPONDENTS ON A THEORY OF UNJUST ENRICHMENT.
In support of its first contention plaintiff relies upon Pike Industries, Inc. v. Middlebury Associates, 140 Vt. 67, 436 A.2d 725 (1981), cert. den. 455 U.S. 947, 102 S. Ct. 1446, 71 L. Ed. 2d 660 (1982). In Pike, Middlebury, owner of a proposed shopping center, entered into a contract with Bean, the contractor for construction of the shopping center. 140 Vt. at 69, 436 A.2d at 726. Bean entered into a subcontract with Pike for paving work at the center. On November 11, 1974, after Pike completed its paving contract, Middlebury terminated the contract with Bean and took over the project under a provision in
the prime contract. Middlebury never paid Bean under the prime contract and as a result, when Pike was not paid for its services under the sub-subcontract, it instituted suit against both Bean and Middlebury. Ibid.
Article 16.2 in the prime contract between Middlebury and Bean provided that, if Middlebury terminated the contract,
the Owner [Middlebury] shall further assume and become liable for obligations, commitments and unsettled claims that the Contractor [Bean] has previously undertaken or incurred in good faith in connection with ...