24 Pa. 283 | Pa. | 1855
The opinion of the Court was delivered by
On the 29th day of January, 1846, an article of agreement under seal was made, by which the defendant Rader agreed by the 1st of October next, “to build, set up, and finish” for the plaintiff Lawall, a dwelling-house, of the dimensions and in the manner mentioned in the contract, for which the plaintiff was to pay $890. In this contract nothing is said as to the kind of roof to be put upon the building, but after the work was commenced and partly done, viz. on the 21st June, 1846, by a su-peradded agreement, not under seal, the defendant stipulated to put a slate roof on the house, for which the plaintiff agreed to pay the additional sum of $35.
The plaintiff, alleging that the body of the house was defectively
The question presented is this, Did the subsequent agreement by parol so affect the original as to destroy its character as a specialty ?
Where a contract under seal is altered by parol, it all becomes parol: Vicary v. Moore, 2 Watts 451. But a mere additional parol agreement, not changing or modifying the one under seal, will not have this effect: Ellmaker v. The Franklin Fire Insurance Company, 6 W. § Ser. 439. Nor will a stipulation by parol releasing or waiving performance of part of the covenant: McComb v. McKennan, 2 W. & Ser. 217. The test of collision, said Chief Justice Gibson, in Ellmaker v. The Insurance Company, “ was the capacity of the two contracts to be executed together. Where that can be done the one is not substituted for the other, and where there is in fact substitution it operates as abandonment, the specialty being relinquished, except as matter of reference, for the terms of the parol contract which has supplanted it.” Let us apply this test to the case under consideration.
By the agreement under seal the defendant binds himself to build for the plaintiff a house in a certain specified manner. Nothing is expressly said as to the kind of roof to be put on the house; but as the house was to be finished, it follows, as a matter of course, that it was to have a roof. It was all to be done in a workmanlike manner, and in the absence of an express stipulation the question presents itself, what kind of a roof was in contemplation of the parties. Were it important to know the precise kind of roof which the original contract required, as this would depend upon the custom of the trade in the locality where the house was to be erected, it should have been submitted as a question of fact to the jury; but the parties have furnished us with conclusive evidence that a slate roof was not originally contemplated, for when this is agreed upon an additional price is given for its consideration.
We have then, in the first place, an agreement under seal to build and finish a house, with a roof, but not a slate roof. Afterwards the contract is altered so as to require for its completion a slate roof, and the price or sum to be paid is changed from $890 to $925. After the alteration the contract is still an entirety. Until the slate roof was done the house was not finished. The contract under seal could not be executed without complete performance of the parol agreement, and under the authority of the eases above cited the sealed contract was abandoned, except as matter of reference, and that by parol substituted in its place.
It is argued that the slate roof was a mere addition to and not an alteration of the first contract; but this can only be so upon
Judgment reversed and venire de novo awarded.
Edward Lawall v. Charles Rader.
This case was tried in the Court below with the case just decided of Edward Lawall v. Stephen D. Rader. There was but one case argued in this Court, although from the plaintiff in error’s paper-book it would seem that both cases were brought here by writ of error. The error assigned, upon which we have reversed the case of Edward Lawall v. Stephen D. Rader, does not affect this case, and there is nothing to prevent the affirmance of this judgment.
Judgment affirmed.
