65 Pa. Super. 568 | Pa. Super. Ct. | 1917
Opinion by
This is an action on a written contract to recover for work and material in the alteration and addition to a property belonging to the defendant, according to plans and specifications prepared by an architect selected by the defendant, for which the defendant agreed to pay a fixed sum. Certain modifications were made as the work progressed with the consent pf the architect and owner, by which, according to the plaintiff’s statement, his claim was reduced to $1,320, on account of which the defendant paid the sum of $800, and suit was brought to recover a balance of $520 on the contract, and for $102, for extra work and material.
The defense enumerates a large number of alleged omissions in the work provided for; substitution of materials and material changes of construction, on account of which the defendant alleges she was obliged to expend certain sums of money, in the purchase of material and labor aggregating $1,200.23, and a certificate was asked for in her favor for $601. The verdict was returned in favor of the plaintiff for $426, and the assignments of error raise but the single question, whether under all the evidence the court should have directed the verdict to be for the defendant, which was requested at the time of the trial and refused by the court. There is no doubt of a marked variation from the terms of the contract in
There is nothing apparent in the record to warrant the imputation that there was collusion between the architect and owner in withholding the. certificate, or that the objections made by the architect and owner were not made in good faith, or that they were not made on account of actual existent departures from the contract. They were not for trifling objections, but for a number of substantial defects in construction.
The equitable doctrine of substantial performance is intended for the protection or relief of those who have faithfully and honestly endeavored to perform their contract in all material and substantial particulars, so that their right to compensation may not be forfeited by reason of merely technical, inadvertent or unimportant omission or defects. It is incumbent on him who invokes this protection to present a case in which there has been no wilful omission or departure from the terms of his contract. If he fails to do so, the question of substantial
On the trial certain items were ■ withdrawn by the plaintiff as not warranted, and an analysis of the testimony satisfies us that the changes made by the plaintiff in lessening the thickness of walls and the depths of trenches, the substitution of a cheaper grade of wood, which could not be discovered until after the work was finished, is conclusive evidence of a deliberate intention on the part of the builder to evade the written provisions in his contract, which warranted the architect to withhold the required certificate. In such a case, under the authorities, he is not entitled to recover for substantial performance. A contractor is not permitted to substitute his judgment for a change for that of the owner. The exact terms of the contract must be complied with, or if modified by the parties the evidence of such change should be clear. A part performance or a defective performance in a building contract is not sufficient without such proof. On the whole record, the defendant’s last point, “Under all the evidence the verdict should be for the defendant,” should have been affirmed.
The judgment is reversed.