243 Pa. 502 | Pa. | 1914
Opinion by
The facts of the case with two or three omissions have been clearly stated by the learned judge of the court below, and will be found in the reporter’s notes. They need not be restated here.
This is an action by the contractor against the owner to recover the- cost of tearing down and rebuilding the damaged part of a building being erected by the former for the latter. The amount is not in dispute. The finding of the jury was in favor of the plaintiff and under the charge the verdict established that the alleged defect in the plans and specifications did not cause the sinking of the building; that the plaintiff used all practical precautions to prevent water getting into the foundation; and that the wall fell because the soil on the defendant’s lot when excavated to the width and depth required by the contract was not sufficient to sustain the building to be placed upon it. The single question here is whether the contractor or owner is responsible for the loss resulting from the sinking of the east wing of the foundation wall caused by the insufficiency of the soil to support the building. The learned court below held the contractor responsible, and entered judgment non obstante veredicto for the defendant. The plaintiff company, the contractor, took this appeal.
The learned court below in reaching its conclusion applied the rule of absolute obligation on the part of a contractor, and held that the contract was entire and indivisible, that the contractor was required to finish and deliver a completed building to the owner, that the
The agreement between the parties to this litigation does not provide simply that the contractor shall furnish certain materials and do certain work in the construction of the hospital on a certain lot of ground in accordance with definite plans and specifications. He was not permitted to furnish such materials or do such work as he deemed a compliance with the contract for the erection of the building nor could he deviate from the plans and specifications if he found them defective or insufficient to support the building on the designated lot of ground so as to complete the building in accordance with the agreement. In other words, while he was required to furnish all materials and perform all the work for the erection of the building as shown on the drawings and described in the specifications, the materials were to be furnished and the work was to be done under the supervision and direction of the architect who was to determine the true construction of the drawings
It will be observed that the architect employed by the owner to prepare the plans and specifications and to supervise the construction of the building had plenary power and control over the contractor. His judgment was final as to the quality and quantity of the material and the work authorized, the meaning of the plans and specifications, and their sufficiency for the erection of the building. He was authorized to make any changes in the work he deemed desirable, and the owner could discharge the contractor if he failed to comply with the architect’s orders and complete the work at the contractor’s expense. The architect could likewise change' the plans and specifications at his pleasure, and the contractor was compelled to submit and erect the building
. We regard this case as ruled by the doctrine of Filbert v. Philadelphia, 181 Pa. 530, and cognate cases. It will be observed in the official report of the Filbert case that counsel cited the cases relied on by the court below and the appellee here, and they were, therefore, necessarily considered in deciding that case. What differentiates these cases from those in which the doctrine of absolute liability of the contractor is imposed is the authority of the architect or superintendent in charge to make changes in the drawings and specifications at his discretion, to supervise and direct the work, and to compel obedience by the contractor to any order the architect or superintendent may make concerning the drawings, specifications or work. Speaking of the effect of such authority, exercised in that case by the department of public works of the city, the present Chief Justice, delivering, the opinion in the Filbert Case, said (p. 545):
“It was not at any time a fixed and certain contract, as the' city through- her officials could make any changes which were deemed necessary, and the contractors were bound to build as directed.......The contractors were given no discretion. Every line was drawn, every grade was fixed and every detail was provided for by the city’. If the contractors had thought it wise to depart from the plans, and had done so and built a better reservoir, they could have recovered nothing. There would have been a deliberate and wilful departure from the terms of the contract which would have defeated their entire claim for the price. We cannot conclude that, under an agreement which might be changed from time to time,- and in*516 which the only certain thing was that materials should be furnished and work performed ‘in strict and exact accordance with plans and specifications’ prepared or to be prepared thereafter by the city, it was intended that the contractors should do more than make a reservoir complete and perfect according to the plans and specifications furnished.”
It is manifest that the soil where the structure was being erected was insufficient to support the building, and that it was impossible to erect a substantial building there on the foundation supported by the footings provided in the drawings. This appears from the fact that the building fell and was reconstructed on a foundation having footings of double the size and extending through the clay a distance of four feet beyond the depth of the original footings. The rule of impossibility of completion for which the contractor is not responsible may, therefore, be properly invoked here as it was in Murphy v. National Bank, 184 Pa. 208. In that case the owner, as here, invoked the rule of absolute liability of the contractor for defective plans, and in holding that it was not applicable to the facts of that case this court, speaking through Mr. Justice Green, said (p. 217) :
“There is perhaps another reason why the rule invoked for the defendant is inapplicable. It has an exception if the work to be done is absolutely impossible. Upon the theory that the arches fell out because of the weakness and insufficiency of the iron work to support them, it is manifest that if the arches were replaced with the same material and with the same iron work, they would simply fall out again, and would continue doing this as often as the work was repeated. Hence if the plans and specifications were strictly followed, as it is contended they should be, it would simply result that the building never could be finished, in accordance with them, and the case would be within the exception of impossibility.”
The provision in the specifications that the contractor shall examine the plans and specifications before signing
The judgment is reversed, and judgment is now entered on the verdict in favor of the plaintiff and against the defendant.