39 Pa. Super. 134 | Pa. Super. Ct. | 1909
Opinion by
The ninth assignment of error complains of the action of the court in refusing to direct a verdict for the defendant. This assignment cannot be sustained unless, after giving to the plaintiff the benefit of every fact testified to by him or his witnesses and every inference to be fairly deduced from such facts, it appears that no legal cause of action has been shown. It was not denied that the parties had entered into a contract in writing whereby the plaintiff agreed to furnish certain material and perform all the labor necessary to construct an underground crossing, a portion of which was to extend under the right of way and tracks of a steam railroad. The contract was an entire one, and the consideration was the bulk sum of $3,750. The parties stipulated further that the plaintiff should “commence the work required to be done on or before July 14th .... and that the whole of said work shall be fully completed and performed within sixty working days after Jufy 14, 1904.” The contract bears date of Jufy 11, 1904, and seems to have been actually executed on that date. The plaintiff testified that he immediately proceeded to engage and prepare sand, crushed stone and lumber, and to employ men, tools and teams. The plaintiff testified further that he was directed on the 16th, two days after he had begun, to stop the work because the defendant had not yet
The eighth assignment complains of the action of the court in refusing to strike out the testimony of the plaintiff’s witness, Hunt. This witness testified that as soon as the contract was signed he was instructed by the plaintiff to begin work on July 14, the day fixed in the contract. That in consequence of these instructions he went on the ground with the defendant’s engineer and helped stake off the place, to lay pipe, tile, etc., being thus engaged for several hours. He testified that the engineer had directed him to go to work and that he wanted to do so, but was told by the president of the company that he could not go to work “because we have not the right of way.” The witness suggested that they could begin tearing down fence, cutting brush, etc., but he was not permitted to do this. This testimony was admitted in connection with the testimony of the plaintiff of the preparation he had made in the way of
The remaining seven assignments of error, in the language of the appellant’s brief, “ can be grouped as presenting practically one question though they embrace error in admitting testimony and the charge of the court.” This question may be thus stated: The contract having been executed, as both parties agree, under which the plaintiff was to do certain work and receive therefor a bulk sum of money, and the plaintiff having begun in good faith performance upon his part, and the further execution of the contract having been prevented by the defendant’s breach, what was the correct measure of the plaintiff’s damages? This question we think has been conclusively answered by the courts of this state, and it will therefore be unnecessary to go into a detailed examination of the cases in' other jurisdictions cited by the learned counsel for the appellant. Besides, all of these cited cases have been elaborately reviewed and analyzed by Mr. Justice Mestrezat in the recent case of Wilson v. Wernwag,
It was not necessary, in an inquiry thus directed to ascertain what the performance of the work would have cost the plaintiff, to confine the proof to formally executed contracts for labor or material which would have bound the plaintiff whether the work went on or not. It would be a harsh rule to permit a defendant who had committed a breach of his own contract to insist that a wronged plaintiff in making out his case should be compelled to bear such a burden. If under all the testimony, as he produced it before the jury, the cost of the work to him, had the contract been carried out, could be easily and fairly ascertained, then such proof came up to every requirement of the law as declared in the cases cited. The learned judge below was therefore right in holding with the plaintiff upon the main question referred to in the remaining assignments of error and they must be overruled.
Judgment affirmed.