146 Pa. 492 | Pennsylvania Court of Common Pleas, Alleghany County | 1892
Opinion,
The second and third specifications of error may be considered together, as they involve the same principle. The contract in evidence required releases from all contractors furnishing materials, to be produced at the time of the completion of the building, and before the payment under the contract was to be made. At the time the claim was filed and the scire facias issued, there were upon the records certain liens filed by material-men, and it was claimed by the defendants that no right of action accrued until these liens had been satisfied. Upon the trial below, the plaintiff offered a release of these liens in evidence, and they were admitted under exception by the defendants. We think the releases were property admitted. Although payment under the contract could not be compelled, there was nothing in its terms to deprive the plaintiff of the security of his lien under the act of assembly. He had a right to file his claim, therefore, and we see no reason why he might not proceed by scire facias to liquidate the amount due thereon. It is true, the court below would restrain an execution under such circumstances, until the liens were paid and satisfied. This is the proper practice.
The fourth, fifth, and sixth specifications refer to the admission of certain evidence in regard to extra work. The plaintiff contended that the provision of the contract in relation to
The eighth specification alleges that the court erred in affirming the plaintiff’s third point. It is as follows: “ That if the plaintiff acted honestly, and in good faith substantially performed the contract, that was sufficient.” This point was affirmed without qualification. Nor does any sufficient qualification appear elsewhere in the charge. It is true, we have numerous cases which decide that a substantial compliance is sufficient to entitle a party to recover. But to recover what? Not the full contract price, but such price, less deductions for any minor matters left uncompleted. The point was perhaps affirmed upon the authority of Sticker v. Overpeck, 127 Pa. 446, where it was held “ that if the plaintiff acted honestly, and in good faith substantially performed the contract, that was sufficient; and if in minor points the contract was not complied with, the jury might deduct from plaintiff’s damages the difference between the value of the work as it was turned over to the defendants, and what it would cost to have it completed in strict conformity to the contract.” It will be noticed that the plaintiff embodied the first two lines of this ruling in his point, and omitted the rest or the qualifying portion. Had he included the whole, his point might have been affirmed. The effect of the affirmance was to instruct the jury that they might find a verdict for the full contract price, if they believed plaintiff had substantially performed his contract. It is true, the court instructed the jury in the general charge that they might make a deduction for defective work, etc. But there was no instruction that for minor matters wholly omitted, they might and should make a deduction.
Complaint is made in the ninth specification that the court erred in instructing the jury in answer to the plaintiff’s seventh point, “ That if the jury believe that changes in the original contract were plain and palpable to the defendants, the silence
“ There are cases in which the consent of the owner will be implied from the fact that he was present when the alterations were made, and did not object. But that inference ought to be cautiously drawn. The most serious defects may not be observable, even by the sharpest eye, until the work is finished. A variance from the plan, appai’ently unimportant at first, may have an effect upon the building as a whole job, which none but an experienced carpenter would be able to anticipate. A person who gets a house put up under an entire contract is not bound to understand the business. He confides in the skill, as well as the honesty of the man he employs......For these reasons, the general rule is that if the contractor slights or bungles his work, he cannot justify himself merely by showing that the owner was present when he was wronged, and made no objection. ”
This specification is sustained.
We do not think it was error to refuse the defendants’ tenth
Judgment reversed, and a venire facias de novo awarded.