234 Pa. 12 | Pa. | 1912
Opinion by
When the plaintiff offered the architect’s certificate upon which he was suing, the defendant objected, inter alia, upon the ground that it was not a complete award; but it was admitted in evidence. This is complained of in the third assignment of error. The objection should have been sustained, for the award itself shows that the architect did not consider or pass upon at least three items within his cognizance, namely, the claims of the lumber company and the plumbing company, and the Jacobs claim for brick work. In Hamilton v. Hart, 125 Pa. 142, we said, per Mr. Justice Mitchell, “It is well
This litigation was here before (223 Pa. 36), and while there is nothing to show that the parties at that time mutually agreed to disregard the award, it appears from the report that the then counsel for the plaintiff conducted his case along different lines from those pursued at the last trial. Speaking by Mr. Justice Potter we said: “Under the theory upon which the cause was tried, the important question which lay at the threshold of the inquiry was whether the plaintiff had failed to furnish sufficient workmen and proper material for the erection of the house, and whether he had prosecuted the work with due diligence.” In the trial now under review the plaintiff
If the contract be regarded as a whole it is apparent that the parties selected the architect as the one to whose final decision they were willing to submit both the preliminary question of the contractor’s default and the ultimate one of the determination of the account between them; and under our cases that is a bar to a common-law action
As to one item awarded the plaintiff we feel that the architect exceeded the scope of the submission. The twenty-third and twenty-fourth assignments of error relate to the item- of 11,070.14, the rental value of the house, allowed as damages for 217 days’ delay; these assignments should have been sustained. The plaintiff might have held the defendant to the completion of the work and
We have gone into this case at some length in the hope of defining the rights of the parties so that the controversy may be brought to an end. It is not necessary to discuss the other assignments of error further than to say that the-item of $1,013.30, allowed W. H. Sims for supervising the completion of the building for the owner, was within the cognizance of the architect and his decision thereon is not subject to review. As before pointed out, the award sued upon was not final; but the agreement is in force, and should the architect make a valid award, the plaintiff’s remedy is still open to him: Hamilton v. Hart, supra.
The third, twenty-third, twenty-fourth and the last two specifications are sustained. The judgment is reversed, without prejudice.