127 A. 452 | Pa. | 1924
Argued November 28, 1924. On April 28, 1922, the parties hereto entered into a written contract by which the plaintiff, for the consideration of $22,000, agreed to furnish the material and erect for the defendant a three-story brick building, at the corner of Germantown and Willow Grove avenues, Philadelphia, according to plans and specifications. After the completion of the building plaintiff brought this suit for a balance claimed under the contract and for extra work; he recovered a verdict for $4,326.33, and, from judgment entered thereon, defendant brought this appeal.
On one side of the building as constructed was a three-story fire tower, and $1,741.49 of plaintiff's claim was for its erection as extra work. Defendant, while not disputing the amount, claimed it was covered by the original contract, a copy of which was filed in the prothonotary's office on the day following its date. Accompanying the same were the specifications which state, inter alia, "Fire-escape to be as shown and approved by city regulations for fire laws." Aside from the regular specifications there was also filed with the contract as follows: "Addition to specification. One fire tower 7' x 19' with 9" brick wall, concrete roof, fire doors, iron landing with iron pipe railing leading to fire tower from each apartment, wooden stairway inside with railing on same with concrete floor leading to Willow Grove Avenue entrance, fire proof window at each floor, same to comply with fire underwritten and tenement house laws of the City of Philadelphia.
"Correct Eugene T. Lever, Contractor.
"David Lagomarsino, Owner." *113
The fire tower as constructed is shown upon the blue print, but when it was made does not appear. The parties prepared their own plans and specifications. Plaintiff's testimony was to the effect that as planned there was only a fire-escape and that the city authorities required the addition of a fire tower before granting a building permit, of which requirement he informed the defendant; that thereupon they made an oral agreement by which he was to build the tower and the defendant was to pay him as an extra its cost plus ten per cent. Defendant denied the oral agreement and the evidence was conflicting, but the jury accepted plaintiff's version. If the written contract on its face included the fire tower, there would be force in defendant's contention that the oral agreement for extra pay, if made, was for the doing of something for which plaintiff was already obligated, and hence without consideration; but there was nothing in the written contract or in the added specification showing that the latter was embraced within the former. Whether it was or not depended on conflicting oral evidence and was properly submitted to the jury. The uncertainty as to whether the written contract included the added specification caused a latent ambiguity, which could be explained by parol evidence: 2 C. J. 1314. Where there is uncertainty as to what specifications are covered by a written contract, it may be explained by parol evidence and then becomes a question for the jury: Kendig v. Roberts,
Furthermore, it having been found that the fire tower was built under an oral agreement, it was not subject to the terms and conditions of the written contract (Shultz v. Seibel,
The contract called for completion of the building within five months, whereas it was not completed until five months later, and defendant seeks to set-off the rental value of the building during that time. While that is a correct measure of damages (Rogers v. Bemus,
We have fully examined the record but find no cause for reversal.
The assignments of error are overruled and the judgment is affirmed.