15 Pa. 151 | Pa. | 1850
The opinion of the court was delivered by
By their agreement of the 26th of June, 1846, the plaintiffs below assumed the liability and undertook the engagements of Kownover and Evans, in respect of the superstructure of the bridge to be rebuilt. The order drawn by the latter in favor of the former, and the acceptance by the company, so refers to the original contract as to show the parties contemplated it as the basis of the transaction, and as the standard by which the relative rights and remedies of the now plaintiffs and defendants were to be measured and determined. It is true, the order and acceptance furnish the immediate foundation of the action, but its sufficiency, as affording means of redress, is influenced and limited by the articles of the 11th of May, to which all the parties unequivocally point as the governing instrument. The cause is, therefore, to be determined precisely as though Pomroy and Colony were the original contractors for building the superstructure of the bridge, upon the terms and under the conditions stipulated between Kownover and Evans and the company. Thus treated, the case may be approached disembarrassed of some of the perplexities a different view tends to engraft upon it.
Bui; the injustice inflicted in practice, by a liberal application of it in all cases, long since introduced an exception to, or rather modification of a principle, which, however perfect in theory, was found to work harshly in a large variety of instances. That modification was, perhaps, first recognised in Boone v. Eyre, 1 H. Bl. 273, note a: and is thus stated in Ligget v. Smith, 3 Watts 331, where it was approved and applied. A mutual or dependent covenant, which goes but to a. part of the condition on both sides, and whose breach may be compensated in damages, is to b.e treated exactly as if it were separate and independent. Its non-performance will not, necessarily, bar the entire right of the plaintiff. So too, a covenant which is in form entire, but in truth embraces a variety of acts, more or less essential to the whole performance, may be so discharged as to sustain an averment of performance, though a literal compliance cannot be alleged: Wilhelm v. Caul, 2 W. & Ser. 26; Preston v. Finney, id. 53, and Chambers v. Jaynes, 4 Barr 39, are examples of this. Each of them proceeds upon the ground that, where a party, acting honestly, and intending to fulfil his contract, performs it substantially, but fails in some comparatively unimportant particulars, the other party will not be permitted to enjoy the fruits of such imperfect performance, without paying a fair compensation according to the contract, receiving a credit for any loss or inconvenience suffered. And, perhaps, it may be asserted, that where a thing -is so far perfected as to answer the intended purpose, and it is taken possession of and turned to that purpose by the party for whom it is constructed, no mere imperfection or omission, which does not virtually affect its usefulness, can be interposed to prevent a recovery, subject to a deduction for damages, consequent upon the imperfection complained of. Of course, the indulgence is not to be so stretched as to cover fraud, gross negligence, or obstinate and wilful refusal to fulfil the whole engagement, or even a voluntary and causeless abandonment of it. This distinction is pointed out by Mr. Justice Sergeant, in Preston v. Finney, from whence he draws the conclusion, that “ in those .cases where the law allows the party to recover on a quantum meruit or quantum valebat,
The principal subject of debate, however, is the omission of the skewback braces. There is some question, made by the evidence, whether these enter into “ Burr’s plan” as a necessary part of it. They are, however, used in the Northumberland bridge, and it seems a highly useful, and, perhaps, important portion of that peculiar form of bridge. Being, too, a portion of the framing, I think we may take it as indisputable that the parties to the original contract contemplated the insertion of these braces as a part of the projected structure; and it was, consequently, the duty of the plaintiffs to give them a place in the bridge built by them. How far their entire omission, independently of other circumstances, might furnish a complete defence to this action, it is not now necessary to determine; though, I am strongly inclined to believe, they fall within the exception I have stated, as being, comparatively, of little cost, by incurring which they might, even now, be added to the superstructure. But, in this connection, it is to be recollected an agent, called an engineer, was appointed by the managers, to whose supervision and direction the whole of the work was to be subject during its progress, and who, in the language of 'the contract, “ shall, from time to time, give such directions, as to form, dimensions, and manner of constructing said work, as may be necessary to carry out the plan contemplated in these articles.” These are large powers. In the exercise of them, the engineer was in almost constant attendance, directing and correcting, under the eyes and with the knowledge of the defendants. It is in full proof, too, that Colony proposed to the engineer an alteration, supposed by the former to be an improvement in the structure, by connecting the entrance posts with the skewbacks, instead of inserting the skewback brace. This seems to have been approved of by the engineer, and the alteration was made, with his full knowledge. If necessary, it would be well worth consideration, whether assenting to such a change was not within the scope of his .powers, particu
The bills of exceptions to evidence, taken on the trial, have not been argued. They were, very properly, abandoned as untenable. There is nothing in them which would bear examination.
Judgment affirmed.