268 Pa. 14 | Pa. | 1920
Opinion by
Plaintiff contracted to provide materials and perform the work necessary in the construction of an eight-story building situate in the City of Philadelphia, in accordance with plans and specifications prepared by the Hoffman Company, architect, and approved by Smith, Hinehman & Grylls, supervising architects. During the progress of the work extras in the form of labor and materials were required and delays occurred, resulting in additional cost incident to the completion of the building;
The claim of $13,606.05 is made up of two items which must necessarily be considered separately. The first is for $12,656.05, representing additional outlay incident to the construction of extra footings for the foundation of the building, rendered necessary by an order of the building inspector of the city, to the effect that the soil at the depth specified in the plans was of insufficient character to support the weight of the building, and directing that the excavation be deepened and the foundation and columns increased in size. To defeat this claim, as a matter of law, defendant asserts article VI of the contract provides that “No alterations or additions, or anything that shall put additional cost or charge upon the owner shall be made in or to the work except upon the written order of the architects countersigned by the treasurer of the owner,” and avers such order was not
We need not consider the question of the sufficiency of the averment of waiver of the provision that extra work would not be paid for by the owner unless upon the written order of the architects countersigned by the treasurer, in so far as it applies to extra footings, for the reason the additional work was made necessary by the order of a public official, acting within the police power of the city and out of consideration for the public safety, and was not a matter as to which either the owner of the building or the contractors or architects could exercise an option. The requirement of the official was final and conclusive on all parties, regardless of whether or not an order for the change was signed by the architects: Cunningham v. Fourth Baptist Church, 159 Pa. 620. Neither is there merit in the contention that the clause, making final the decision of the architects as to the true construction and meaning of the drawings and specifications, must govern the question raised, as this is not a question of construing the meaning of the drawings and specifications, but one relating to the effect of an order of the building inspector upon the contract between the parties. The law recognizes the right of parties to contracts to stipulate the method of arbitrating
It is conceded that, under the common law rule, a contractor who undertakes an entire contract for erecting a building is presumed, in absence of an express provision to the contrary, to have assumed the risk of unforeseen contingencies arising during the course of the work, unless performance is rendered impossible by the act of God, the law, or the other party: Miller v. Homeopathic Hospital, 243 Pa. 502. Under this rule there is no implied Avarranty of the sufficiency of the soil to support the building to be erected, and the contractor assumes the risk of a loss incident to such defectiveness. It is contended, however, the contract in this case contains provisions bringing it within the exception to the above rule, and in support of that contention plaintiff relies mainly on Miller v. Homeopathic Hospital, supra. Plaintiff there agreed to furnish the materials and labor in the construction of a building in accordance with plans and specifications, and before its completion the foundations gave way necessitating the rebuilding of a portion of the wall on more substantial footings. The court held the contractor was entitled to recover the additional expenses of enlarging the footings and reconstructing the wall. ' The contract in that case contained the usual
Aside from the general stipulations above referred to, the only clause directly bearing upon the question of
The remainder of the claim for extras is for the sum of $950, for installing electric cables to convey current from the generators to the fire pumps. Plaintiff averred that from time to time extra work and materials were ordered by defendant for which the latter agreed to pay, and that a number of these orders were in writing while others were merely verbal, but in no instance were they countersigned by the treasurer of the owner as required by the contract; nevertheless they “were recognized as valid and in some instances said extras have been paid for.” This declaration is followed by an averment that the provision requiring a written order, countersigned by the treasurer of the owner, “was waived by the parties.” It is then further declared that among the extras required by plaintiff but for which no written order was obtained were the materials necessary for installation of electric cables and that plaintiff “duly complied with said order and installed said cables; the cost thereof, which was the reasonable market value thereof, was $950.”
The contract provided that extra work should not be paid for except on written order from the architects, countersigned by the owner, and also that no provision of the contract or specifications “can be waived by either party unless such waiver is expressed in writing and duly signed.” There would seem to be no valid legal reason, however, for holding this provision could not in turn be waived if the parties saw fit to do so: Bartlett v. Stanchfield, 148 Mass. 394; Headley v. Cavileer, 82 N. J. L. 635. The averments above quoted sufficiently comply with the Practice Act of 1915, requiring the statement of claim to be “as brief as the nature of the case will admit” and to “contain and contain only a statement in a concise and summary form of the material facts on
With respect to the claim of $44,452.15 for consequential damages, resulting from delay in the work alleged to have been due to defendant’s default, plaintiff concedes that all but three items amounting to $3,233.10 are insufficiently averred and that the court below would have been justified in entering judgment thereon for defendant. It is argued, however, that as to the three items to be mentioned, sufficient information is given to sustain the claim. The first is a claim for the “amount paid by plaintiff for lumber for concrete forms required in excess of the lumber that would have been required for that purpose if the building could have been constructed as contemplated by the contract.” No details are given except the number of square feet and the price per thousand. The claim is based on “the amount paid by plaintiff.” It is asserted the amount was “the fair and reasonable market prices” and while the kind or quality of the lumber is not set forth the statement avers it was “for concrete forms” and this would seem to be sufficient information to enable defendant to present a defense to the item, if any existed. The next item for $1,000 is “amount paid by plaintiff for extra hauling, loading and unloading seven hundred tons of steel at $3.75, which expenditure was rendered necessary by reason of the delay above mentioned.” While the general averment in the beginning of paragraph 17, that the sums paid were the fair and reasonable market price,
The judgment must be modified as indicated herein and the record is remitted with direction to the lower court to enter judgment in accordance with this opinion.