Opinion
Submitted May 26, 1928 —
Decided October 15, 1928.
On appeal from the Supreme Court. Action tried in Cape May Circuit, a jury being waived. Judgment entered in the Supreme Court on the report of Circuit Court Judge Smith, who wrote the following opinion:
"This is an action for the value of extra services and materials alleged to have been furnished by plaintiff to defendant in connection with the repairing and rebuilding of a bridge for the defendant county. The plaintiff claiming that certain materials and certain labor furnished by him were outside of the contract and that he was entitled to recover for their value. The defendant contending that they were covered and required to be furnished by the terms of the contract.
"This matter was originally tried before a referee and now comes before me following the dissent and exceptions to the referee's report, and by consent of all parties was heard by me without a jury.
"After reading the referee's report, the evidence and exhibits submitted by the plaintiff and defendant, I find as a fact that with the exception of the item of inspection fees, the material and labor claimed as extra work are all covered and required to be furnished under the contract and specifications.
"The specifications, paragraph 1, page 1, provide: `The work to be performed under this contract will consist in furnishing all tools, implements, machinery, labor and all necessary materials for the rebuilding of the bridge,' * * * and in section 19, page 9, * * *. `And it is hereby understood that the contractor in accepting the contract agrees to furnish any and everything necessary for such construction notwithstanding any omissions in the drawings or specifications.'
"No rule of law is more firmly established by a long train of decisions than this: That where a party, by his own contract, creates a duty or charge upon himself, he is bound to make it good, if he may, notwithstanding any accident by inevitable necessity because he might have provided against it by his contract. Middlesex Water Co. v. Knappman Whiting Co., 64 N.J.L. 240 (at p. 249); School Trustees v. Bennett, 27 Id. 513 (at p. 517).
"I find as a fact that no authorization or agreement in writing was given by the defendant or its engineer authorizing or agreeing to a modification of the contract between the parties covering the item claimed by plaintiff, other than inspection fees.
"Section 2, page 1, of specifications provides:
"`The contractor must at all times comply with the requirements of the specifications and shall not on any pretense save that of a written order from the contracting parties or the engineer, deviate from the intent of the specifications.'
"`Where persons contracting with each other regarding what shall be their course of conduct with each other, regarding a certain subject-matter, and declare that there shall be no change in their agreement, which shall vest an additional liability in favor of or against each other, without authority to do so in writing, the mere performance of such extra service without such written authority will not give rise to an implied waiver of the provisions of the contract in that respect; so without proof of alterations in the contract, by the parties, or express proof of waiver of its terms, the plaintiff in order to recover was bound to produce the order of the architect stipulated for in the agreement.' Landstra v. Bunn, 81 N.J.L. 680; Sheyer v. Pinkerton Const. Co., 59 Atl. Rep. 462.
"I further find as a fact that the plaintiff for and in consideration of the granting of an extension of time to him for completion, agreed to a modification of the contract to the extent of providing that the plaintiff was chargeable with the expense of inspectors. The plaintiff in his letter of August 20th, 1923, which was offered in evidence, said: `In regard to our paying the costs of inspection, it is our understanding that the inspector receives $5 per day and that this represents the costs which we are to pay; we agree to bear this expense as required.'"
For the appellant, Andrew J. Whinery.
For the respondent, Palmer M. Way and S. Russling Leap.
The judgment under review herein should be affirmed, for the reasons expressed in the opinion delivered by Judge Smith in the Circuit Court.
For affirmance — THE CHIEF JUSTICE, TRENCHARD, PARKER, MINTURN, KALISCH, BLACK, KATZENBACH, CAMPBELL, LLOYD, WHITE, VAN BUSKIRK, McGLENNON, KAYS, HETFIELD, DEAR, JJ. 15.
For reversal — None