180 Pa. Super. 398 | Pa. Super. Ct. | 1956
Opinion by
Plaintiff sought to recover $1,250.00 for the construction of a reservoir to hold water on picnic grounds owned by defendant. After a verdict for the defendant the lower court refused plaintiff’s motions for judgment n.o.v. and for a new trial and entered judgment upon the verdict. Plaintiff appealed.
The parties stipulated that the record shall consist of all relevant testimony as stated in the charge of President Judge Elmer L. Evans to the jury and certain testimony of defendant’s witness, Walter Brozewicz.
The testimony is summarized in the lower court’s opinion as follows: “On the defendant’s property, which had been purchased for use as a picnic grounds for many clubs, who made up the defendant organization, was great need for water. There was one water well which produced approximately a gallon of water per hour, and plans were made to drill additional wells. In September of 1950, the plaintiff appeared at a meeting when representatives of these various component organizations were discussing the matter and represented that he was willing to construct for them a reservoir with intersecting trenches and drains to gather and store water. He further represented that he had constructed similar reservoirs on his own and other property, at least one of them in the neighborhood, and
Appellant argues that there was no implied warranty to produce water and cites Book v. New Castle Wire Nail Co., 151 Pa. 499, 25 A. 120, as authority for this principle of law. In the present case the defendant does not rely upon an implied warranty but rather an express warranty. Appellant also contends that the warranty must be specific as to quantity or quality. One of the defendant’s witnesses testified that plaintiff “guaranteed that it would produce plenty of Avater for two thousand people or more, and that it would be water that could be inspected on any occasion and would be fit by State inspection for drinking purposes.” Another witness testified that plaintiff was at the meeting in September, 1950 and represented that the place he Avould install for them would store 15,000 gallons of water anyway. Casimir StaszeAvski also testified substantially the same as above. The defendant’s attorney offered tAvo more witnesses to the same effect but they were not called because it was stipulated that their testimony Avould be similar to that produced by the prior testimony. There was also testimony that the plaintiff used the words “No water, no money.” What was said by Judge Cakdozo in Jacolo & Youngs v. Kent, 230 N.Y. 239, 129 N.E. 889, is particularly applicable here: “The courts never say that one who makes a contract fills the measure of his duty by less than full performance. They do say, hoAvever, that an omission, both trivial and innocent, will sometimes be atoned for by the allowance of the resulting damage, and will not always be the breach of a condition to be followed by a forfeiture ... We must weigh the purpose to be served, the desire to be gratified, the excuse for devia
Filbert v. Philadelphia, 181 Pa. 530, 37 A. 545; Seiple v. Cosgrove, 41 Lanc. Rev. 57; and Belaune v. Gambino, 161 So. 311, cited by appellant, differ from the case at bar in that the owners in those cases by contract specified in detail what was to be done and the manner of doing it. In the case at bar the site, the design and the method of performance were selected or furnished by the appellant. The appellant also complained of the lower court’s charge to the jury that it had to find “no guarantees or assurances of water” before it could find for the plaintiff. We find no error in the court’s charge when the entire charge in this connection is considered. It is as follows: “Now if you determine that the plaintiff, although he may have tried to sell his product to them, which is what any salesman will do, if he built it according to their instructions and their wishes and at the place they wanted it and made no guarantees or assurances of water, then he is entitled to either $1200.00 or $1250.00, depending on what you determine the oral contract to have been.
“If you believe that he insisted upon his process, of which he was an expert, being better than a well,
Appellant also argues that there was no breach of warranty which required him to forfeit the entire contract price. We agree with the lower court’s disposition of this argument in the following language: “Restatement of Contracts, Section 274, page 399, cited with approval, Sgarlet vs. Griffith, 349 Pennsylvania 42, is to the effect that only material failure of performance by one party discharges the other. Section 275, pages 402-3, gives the rules for determining the materiality of a failure to perform. These things must be considered: ‘(a) the extent to which the injured party will obtain the substantial benefit which he could have reasonably anticipated; (b) the extent to which the injured party may be adequately compensated for damages for lack of complete performance; (c) the extent to which the party failing to perform has already partly performed or made preparation for performance; (d) the greater or less hardship on the party failing to perform in terminating the contract; (e) the wilful neglect or innocent behavior of the party failing to perform . .
“It is true that the plaintiff here suffers a complete loss for his material and labor if the verdict is sustained; and were it possible to compensate the defendant in damages for lack of complete performance, it would have been our duty at the time of trial to allow the contract price less what it would cost to complete
Judgment affirmed.