263 Pa. 441 | Pa. | 1919
Opinion by
On September 29, 1916, plaintiffs contracted to erect for defendant a building, which was to be divided into stores on the first floor, and offices above. By the terms of the contract it was provided in Article VI that one of the stores should be completed on or before January 1, 1917, and the rest of the work before January 15,
Plaintiffs did not complete their work until a considerable time after the dates fixed therefor; but after it was completed a meeting was held for the purpose of determining what, if any, allowance should be made' to the owner by reason of the delay, resulting in the architect making an allowance of $2,100 to the owner, and issuing to plaintiffs a certificate for the balance due, the amount whereof was subsequently paid by defendant. Plaintiffs claimed that they were entitled to the $2,100, but, instead of proceeding as provided by article XII ’ above quoted, they brought the present suit to recover that sum, and in their statement of claim averred that the work was completed and the building accepted on or about April 15,1917; that the delay was “due to the per
At the trial, evidence was produced by both parties, and no complaint is made in regard thereto. Plaintiffs themselves offered in evidence the building contract and the final certificate of the architect and sought to avoid being bound by the award by alleging that the correspondence and conversations between them and the architect showed a waiver of any right to damages for the delay. Neither in the pleadings nor the evidence did they challenge the right of the architect to determine the number of days’ delay, or the amount to be deducted therefor, unless “the conduct of the defendant and of his said architect” operated to waive the [provisions of the contract as to damages for delay. Plaintiff McCloskey admitted that all the claims which they made for delay were pursuant to article VII of the contract, that he was present and advised the architect as to the causes of delay at the time the award was made, and that they did not ask for an arbitration as provided by article XII.
The trial judge charged the jury that by the terms of the contract the determination of the extension of time for completion was submitted to the sole decision of the architect, and of course this' is right, for the contract so
The charge in this respect was more favorable to plaintiffs than they had a right to ask. It practically gave no effect whatever to the decision of the architect. The pleadings, and the course taken at the trial, render inapplicable a number of the points suggested in appellants’ argument. Unless we overlook both the pleadings and the evidence, which of course we cannot do, we must hold the assignments of error not to be well founded.
The judgment of the court below is affirmed.