223 Pa. 106 | Pa. | 1909
Opinion by
This is an action of assumpsit to recover damages for the breach of a contract. A number of the assignments of error relate to the legality of the contract and are predicated upon the theory that appellant company undertook to do what it could not do without the consent of the municipality and adjoining property owner, and if such consent could not be obtained, the undertaking was illegal and the contract void. On this question we agree with the conclusion reached by the learned trial judge and with the views expressed by counsel for appellees. There is nothing on the face of the contract to indicate an illegal purpose. The mere fact that it involved a change of grade in an old road over which the public had an easement did not make the purpose unlawful and the contract void ab initio. It only required the consent of the city and the adjoining prop
As to the measure of damages, our view is different. The learned court below directed a verdict for plaintiffs for the full amount claimed in the declaration, together with accrued interest thereon. The amount was determined by multiplying the number of cubic yards necessary to complete the fill as set out in the statement of claim, by the estimated cost per cubic yard averred in the declaration. In other words, the measure of damages was held to be the cost of completion. It was further held that if appellant desired to controvert the fact as to the number of cubic yards alleged to be necessary to complete the fill or the cost thereof, these matters should have been set up in the affidavit of defense. With this position we do not agree. The affidavit of defense denies that appellant ever covenanted to fill plaintiff’s property with 150,000 cubic yards of earth or to place any specific amount of waste material upon the same. Since the alleged amount of earth required to complete the fill is arrived at in the statement of claim by deducting from the estimated number of cubic yards required to make it, the number of cubic yards already deposited, it would seem like sticking in the bark to say that appellant should be denied the right to raise the question of its liability to furnish the whole number of cubic yards or some fractional part thereof because it had failed to specifically deny its obligation to furnish 71,628 cubic yards which it was alleged were necessary to complete the contract. The denial of appellant’s liability to furnish the greater amount necessarily includes the Jesser and certainly is sufficient to put upon plaintiffs the burden of establishing not only the contract and the liability of appellant under it, but the damages suffered by reason of the