fifty-third judicial district, specially presiding,
— Plaintiff had a contract to build a schoolhouse for defendant. Soon after construction was started the War Production Board, by its order no. 41 (C. C. H. War Law Service, Priorities 2, par. 37,092), forbade further building and by later orders required an award of priorities before certain materials might be secured. Plaintiff, contending that the school board by its architect had forbidden him to proceed because of lack of priorities, brought suit on his contract. The question of the authority of the architect was submitted to the jury. The jury awarded a verdict to plaintiff in the sum of $890.56. Defendant has filed a motion for judgment non obstante veredicto and a motion for new trial.
It is often difficult to determine whether responsibility for inability to proceed with a building contract because of interposition of the law falls upon the owner or the builder. This is particularly true during wartime conditions such as now prevail when various governmental agencies have the right to issue summary orders which have the force of law. The trial judge in this case met the difficulty by ruling that so long as the
The agency of the architect was properly submitted to the jury. The contract gave the architect general powers to supervise and direct the work and power to interpret the contract, plans, and specifications. According to plaintiff’s showing there was evidence from which it might be found that defendant had ratified everything done by the architect by way of stopping the work. The act of a municipality may be proved other than by its minutes or other writings: Cooper v. Plymouth Twp. School Dist.,
It is now contended that the case was tried and submitted to the jury on an erroneous measure of damages. This is the principal question for decision. Plaintiff proceeded upon a demand for his out-of-pocket expense in proceeding with the work. To this end he alleged and proved labor cost incurred in doing a small amount of excavation and in putting in the footers, his expense for engineering services, the indebtedness incurred in causing materials to be prepared by subcontractors and his overhead expense. The affidavit of defense did not challenge this as the appropriate measure of damages nor did defendant object on this score as evidence was offered by plaintiff. Defendant’s principal reliance was upon the contention that the architect had no authority by appropriate resolution of defendant to empower him to stop the work.
“Where a contractor has partly performed an entire contract and is prevented from completing performance by the act of the other party or by law, we have said that he may recover in action on the contract, and the measure of his damages is the contract price, less the reasonable cost of completing the work: Harlow v. Beaver Falls Boro.,
Defendant’s previous objection to plaintiff’s proof had been of a different character — lack of qualification in the witness, variance between pleading and proof, and the like. Even defendant’s second point, the refusal of which is the basis of the fourth and sixth reasons for a new trial, does not raise the complete point. It denies plaintiff’s right to recover for any materials not actually delivered on the ground but does not affirm the general rule of damages for which defendant now contends.
Defendant’s present contention leaves out of consideration another principle of the law of damages. Often it is difficult to prove the cost of completion. This is true in the present case where work had just begun. The rule of Hottinger v. Hoffman-Henon Co., supra, applies most clearly where most of the work has been
“When Damages May Be Measured By Expenditures In Part Performance.
“The amount of the plaintiff’s expenditure, reasonably made in performance of the contract or in necessary preparation therefor, is included in compensatory damages, with the following limitations:
“(a) Such expenditures are not recoverable in excess of the full contract price promised by the defendant. . .
“(b) Expenditures in preparation are not recoverable unless they can fairly be regarded as part of the cost of performance in estimating profit and loss.
“(c) Instalments of the contract price already received and the value of materials on hand that would have been consumed in completion must be deducted.
“(d) If full performance would have resulted in a net loss to the plaintiff, the amount of this loss must be deducted, the burden of proof being on the defendant.”
The language of section 333(c) would seem to indicate that any materials in plaintiff’s hands would not be chargeable as expense but the discussion makes it clear that only materials which might be used elsewhere are meant. The Pennsylvania authorities support the Restatement. In Rogers v. Davidson,
The question of Henry Busse’s damage was submitted to the jury in substantial conformity with the principles just stated. When evidence was being produced, no objection that the true measure of damages was the difference between-contract price and cost of completion was ever made. Nor was there objection that the materials must have been incorporated in the work or at least delivered on the job. Various objections were made but not this one. The principles stated in Weintrob’s Estate,
When the case was submitted to the jury plaintiff’s bill was sent out with the request that the jury mark such items and amounts as it approved. Inspection of the list as returned by the jury indicates that, in addition to the items of steel lintels and complete finishing hardware which were withdrawn by plaintiff, the jury rejected the claim for money due to the painting subcontractor and allowed only one half of the claim for a contractor’s fee.
Plaintiff’s second point as drawn was obviously erroneous. The right to recover turns not alone on whether the property was delivered but whether it is' fit for use by others. Under the verdict defendant is entitled to the wardrobe hardware, stored in plaintiff’s warehouse, the cut stone in the warehouse of the Arde-line Stone Company, the millwork in the warehouse of Hoffman Lumber Company, and the steel sash in the warehouse of E. K. Geyser. There are some difficulties in this disposition of the matter but perhaps not more than are inherent in the situation and, in any event, defendant has something to show for its money. The same difficulties would confront us had the rule of the Hot-tinger case been followed. The stuff has been fabricated and is not generally useful. What is to be done with it? The administration of justice is a practical matter. Perhaps the exasperating features will move the parties to compromise their difficulties.
We have given the case very careful consideration. It was submitted in accord with the proper theory of damages. No further instructions were asked for because neither side was clear , on its own views. The result is reasonable. Entertaining these views we make the following
Order
Now, May 5, 1944, defendant’s motions for judgment non obstante veredicto and for a new trial are each severally overruled and refused.