32 Pa. Super. 437 | Pa. Super. Ct. | 1907
Opinion by
The plaintiff contracted in writing with the defendant to furnish the materials and perform the work necessary for the erection of a brick addition to the defendant’s manufactory* “ in strict conformity with and according to the true intent and meaning of the drawings and specifications prepared by the architects.” It appears from the plaintiff’s statement of claim and.his offer of testimony that he alleges : that when the construction of the second-story floor was reached it was discovered that, owing to the settling of the floors of the old building in places, it was physically impossible to make the floor of the new building level throughout, as required by the working plans furnished by the architects, and at the same time have it on an exact line or level with the floors of the old building, as required by the specifications; that he was directed by the architects and the defendant to finish the building according to the plans, regardless of the floors in the old building, which he did, connecting the floors at the openings in the wall by inclines ; that with this modification he completed the building in accordance with the contract; and of the contract price there remains unpaid $1,150. Referring now to the contract, we find the provisions: that the work was to be done “ under the direction and to the satisfaction ” of the architects; that “ the architects’ decision shall be conclusive as to the true purport and meaning of the drawings and specifications; ” that the plaintiff should “ comply with the directions of the architects as to the time and manner of performing the work, the precautions to be taken, and the quality of material and workmanship involved; ” that the architects should examine the monthly Statements the plaintiff was required to furnish and “ approve the same, in whole or part, as in their judgment is deemed to be a fair valuation of the said work and materials, less ten per cent thereof; ” which should be retained “ until the satisfactory
On the trial, the plaintiff put in evidence the contract, plan and specifications, and was proceeding to show performance by the testimony of a witness, when the defendant’s counsel objected that the proper way of proving performance of the contract was by producing the architects’ certificate, and if the plaintiff could not produce it he was bound to account for its absence. The plaintiff then made the offer which is quoted in the first assignment, to which the defendant’s counsel objected as follows: “ I object to the offer because in the statement of claim it is alleged that the plaintiff has substantially completed the contract and that he is unable to furnish the architects’ certificate, which by the contract itself is made evidence of performance, by reason of its being wrongfully withheld from him; and because the certificate is not produced or its absence explained by showing combination or collusion justifying going on in its absence.” The court sustained the objection, and as ■the effect of this ruling was to prevent the plaintiff from proving performance, binding instructions for the defendant logically followed. Another preliminary matter to be noticed is that it is alleged in the plaintiff’s statement of claim that his failure to furnish a certificate from the architects of their approval of the work was owing to the fact that it was wrongfully withheld from him; therefore no objection to the offer upon the ground that proof of that fact was not admissible under the pleadings could be sustained.
We need not take up time in considering whether the contract contemplated that the final approval of the work by the architects should be in writing. We assume for the purpose of the present discussion that this is what was meant, and therefore that the plaintiff could not recover unless sufficient excuse or reason for not producing it was shown. What would be such sufficient reason or excuse has been considered in Whelen v. Boyd, 114 Pa. 228 and Pittsburg Terra Cotta Lumber Co. v. Sharpe, 190 Pa. 256, and the recent case of Payne v. Roberts,
As this case is now presented, we must assume that the plaintiff is able to prove full performance of the contract in accordance with the plans and specifications as modified by the defendant and the architects, and that when he went to the architect after completing the building and told him that he came for a settlement, he was told by the architect “ that there could be no settlement because the ow;ners were not satisfied with the incline, and that they would have to be satisfied; ” further, that the reason which the defendant gave for refusing settlement was, not that there had not been “ satisfactory completion and final approval of the work by the architects,” but that the inclines were not covered with steel plates. But it is not pretended that there is anything in the contract, the plans or the original specifications which required this to be done; nor, so far as now appears, was it required by the specifications as modified. On the contrary, the work was done precisely as the plaintiff was directed to do it, and if the offer shows all that occurred, it was not claimed otherwise by the defendant
Judgment reversed and venire facias de novo awarded.