84 Pa. Super. 328 | Pa. Super. Ct. | 1924
Argued December 10, 1924. The plaintiff's action is founded on a claim for work and materials furnished to the defendant which was not disputed by the latter. The controversy arises out of a counterclaim set forth on the record by means of which the defendant sought to recover damages for a breach of contract by the plaintiff through which a loss resulted to the defendant in excess of the plaintiff's demand. This counterclaim arose out of a contract in writing entered into May 15, 1923, between the plaintiff and defendant according to the terms of which the former agreed to furnish to the latter the cabinet work for the Lawndale Bank and Trust Company's building in Philadelphia as shown on the architect's plan and subject to a copy of the specifications attached to the contract for twelve hundred and seventy-five dollars. The material was to have been delivered not later than June 8, 1923. On June 6th of that year the defendant received from the plaintiff the following letter: *331
"Friel-McLeister, "1615 Spruce Street, "Philadelphia.
"Gentlemen:
"With reference to the cabinet work for the Lawndale Bank and Trust Company, kindly be advised that inasmuch as we have requested some form of guarantee from you that payments will be made in accordance with the contract and that the said guarantee was not forthcoming we must therefore necessarily forego the pleasure of serving you.
"Please consider the contract void.
"With many regrets we are pleased to remain,
"Yours very truly,
"Huskey Manufacturing Company."
At the time when the plaintiff's bid was tendered, the defendant received bids for the same material from two other companies engaged in the same line of work; the bid of the South Philadelphia Woodworking Company being $1,425 and somewhat lower than the third bid. On receipt of the letter above recited, the defendant got into communication with the South Philadelphia Company and made a contract with it for the necessary material, the consideration paid being the amount stated in its bid theretofore tendered. The difference in cost between the price for which the plaintiff had agreed to do the work and that which was paid to the South Philadelphia Company is one of the items of the counterclaim. As an additional set-off, the defendant offered to prove that because of the plaintiff's refusal to perform the contract, the defendant's work at the bank was delayed from June 8th, the time when the plaintiff should have delivered the material, until June 15th, during which time the latter had employed and was required to pay workmen who were idle by reason of the plaintiff's failure to deliver the material according to the contract. As evidence to establish a *332
part of the defendant's counterclaim the defendant, having proved that it contracted with the South Philadelphia Company to furnish the material which the plaintiff had failed to do, offered to show the amount of the former company's bid. This evidence was rejected on objection of the plaintiff, as was also the offer to prove the bid in writing of the South Philadelphia Woodworking Company and of the Erik Jansson Company. The evident purpose of these offers was to show what it cost the defendant to procure the material which the plaintiff had refused to deliver and also to show that the amount so paid was a reasonable price. A breach of the contract by the plaintiff having been shown, it was in line with the position of the defendant to prove the extent of the injury he had sustained. If the subject of the contract had been something having a known value in the open market, the going price of the thing in that market would ordinarily fix the amount of the damage, but the parties here were dealing with a subject not for sale generally. What the defendant contracted for was material of a specified kind of fixed dimensions to be erected in a particular place in accordance with the plans of an architect. It is highly improbable that the same plan and specifications were appropriate to any other location in the Commonwealth. The defendant after the plaintiff's default had not the opportunity therefore to go into an open market. He must apply to someone engaged in the same kind of work who was willing to supply the required material. The amount paid to such substitute contractor is prima facie evidence of the cost of performance to the defendant if shown to be reasonable. The rule is familiar that where a contractor fails to perform without legal justification, the other party is entitled to recover the difference between the contract price and the amount which he is obliged to pay for the same thing under a new contract. The measure of damages is ordinarily the cost of securing the performance of the work by another less the contract *333
price: Sutherland on Damages, 4th Ed., Vol. 3, section 698; Sedgwick on Damages, 9th Ed. Vol. 2, section 618; Masterton v. The Mayor, 7 Hill 61. Where the subject of a contract relates to building or construction, the measure of damages is the reasonable cost to the owner of completing the contract, and where there is no other evidence on the subject the actual cost to the owner is some evidence of the reasonable cost of completion. In Michigan Lubricator Co. v. Ontario Cartridge Co., 275 Fed. 902, the court sustained the admission of evidence as to the cost of a substituted article because it tended to establish the measure of damages. In City of New York v. Second Avenue R. Co.,
The other part of the defendant's counterclaim was a bill for $57, wages paid the defendant's carpenters who were prevented from working because of the plaintiff's failure to supply the material according to the contract. The reason for rejecting this evidence does not appear on the record, but on its face it seems to be admissible. If the men were employed, as alleged, and there was no other service in which they could work, their loss of time would be a direct consequence of the plaintiff's default *335 and a proper element in the computation of damage. It may be that the claim contains an overcharge or that the men were not out of employment or might have been assigned to other work, but these are considerations relating to rebutting evidence. The authorities cited by the appellee relate to proof of the value of property having a market value and not to an article made for a particular purpose and having no adaptation to any other than the particular use. The seventh assignment is sustained.
The position is taken however on behalf of the appellee that the law requires a reasonable effort to mitigate damages and where loss is occasioned because no attempt is made to avoid it, nothing can be recovered, and Warren v. Stoddart, 105 U.S. Reports 224, and Meyer v. Quaker City Sign Co.,
The judgment is therefore reversed with a venire. *337