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Costanza Builders of New Jersey, Inc. v. Eastern Concrete Materials, Inc.

A-5720-02T2 (N.J. Super. App. Div. 2004) (Unpublished)

UCC; CONTRACTS; ACCEPTANCE—Failing to complain within a reasonable period of time about short shipments or defective goods may be the basis for an inference that delivery was acceptable.

A supplier sold concrete to a general contractor. When the contractor stopped making payments, the supplier sued. In response, the contractor raised factual objections to the supplier’s claim, alleging that there was no evidence that certain of the deliveries were ever made, that unauthorized charges appeared on the supplier’s bills, and that some of the concrete delivered was of a higher strength and higher cost than agreed upon. The lower court found the evidence to be so one-sided that a rational fact finder could not find in favor of the contractor. Therefore, it granted the supplier’s motion for summary judgment.

On appeal, the contractor disputed the delivery of twenty-seven out of the fifty-seven loads allegedly delivered to the work site. It claimed that only its job supervisor was authorized to sign for deliveries, and neither his signature, nor any other recognized signature, appeared on the disputed delivery slips. The Appellate Division rejected that argument. There was no evidence that the contractor told the supplier that job supervisor was the only authorized signatory. Each day’s deliveries were made in staged batches, usually of ten cubic yards. Each delivery slip recited the amount of concrete ordered on a particular day, the amount delivered, and the cumulative total of concrete delivered. In many instances, the supervisor’s signature bracketed the deliveries on a particular day. The contractor offered no explanation as to why its supervisor never investigated the allegedly undelivered interim loads. The contractor never complained about a missing delivery. All of the delivery slips were signed and the contractor was the only entity working on the site at the time of the deliveries. This was the basis for an unrefuted inference that the contractor accepted all of the concrete.

The contractor also argued that it was erroneously supplied with, and charged for, concrete with a greater strength than was originally agreed up. The Court pointed out that the concrete’s strength was recorded on the delivery slips; some of the allegedly over-strength concrete was accepted by the supervisor; and all of the concrete was accepted by an employee of the contractor. The contractor never complained about the concrete’s nonconformity until it was sued for payment. Thus, even if the concrete was nonconforming, the contractor waited too long to complain.

The contractor also argued that it never agreed to pay interest even though the charge appeared in the credit agreement. It asserted that the supplier’s credit manager orally agreed to waive the charges. There was no evidence to support this claim. Even though the contractor had crossed off some provisions of the contract before signing, it did not delete the interest provision. There was no competent evidence to prove an oral modification of the agreement.

For those reasons, the Appellate Division affirmed the lower court’s decision and granted the concrete supplier’s motion for summary judgment.

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