230 Pa. 165 | Pa. | 1911
Opinion by
This case comes before us in a very unsatisfactory condition. Some of the material and most important questions cannot be reviewed because the assignments of error are in violation of the rules of court. We have said time and again that such assignments will not be considered. We have twenty-one assignments presented for consideration, less than one-half of which would have been entirely sufficient to raise all the material questions in the case. Had the time required for the preparation of these assignments been devoted to the preparation of the lesser number, there can be little doubt that the rules of court would have been observed and the important questions would have been properly presented for review.
The fifteenth assignment violates rule 30 in failing to quote the part of the charge assigned for error, and assignments sixteen to twenty inclusive violate the same rule in omitting to quote the answers to the points. Assignments seventeen to twenty must also be dismissed because the points for charge request binding instructions.
This was a scire facias on a mechanic’s claim to enforce the payment of a balance alleged to be due the
The second, third and tenth assignments and the objection to the parts of the charge bearing on the matters therein contained must be sustained. It was wholly immaterial how many kinds of gas there were in the borough of Avalon. The contract specifically provided that the contractor should construct the two gas lines and the fact that artificial gas was not in use in Avalon did not relieve him from this stipulation of the agreement. For the same reason the testimony should have been excluded as to the flue linings in the chimneys. The contract required the plaintiff to put the flue lining in, and it was conceded that he had not done so, nor were there any reasons given why he did not comply with this part of his agreement. The contract also provided that Acme Anti-Rust paint should be used for the tin painting, but in direct violation of this provision of the agreement the plaintiff used Princess’s Metallic paint. He does not assign any reason for a change in the paint but offered and was permitted to show on the trial that the paint he used was as good as that provided in the agreement. The defendants had a right to insist upon the substantial performance of these express stipulations of the contract and the plaintiff was not relieved from this duty by reason of the fact that there was only one kind of gas in the borough, that a differently constructed chimney was equally as good as that stipulated for, or that the paint used by
The fourth assignment must be dismissed. The offer made by the counsel for the defendants, in addition to what otherwise might have been competent, included matter which tended to contradict that part of the written agreement which, it was not pretended, had been altered or changed by the parties.
The fifth assignment is not sustained. The matter proposed to be proved was entirely immaterial. It could not affect the case in any way. The fact, if it be a fact, that Air. Morgan suggested to Mrs. Gamble that an architect was unnecessary does not change his liability on his contract under the facts of the case as disclosed by the evidence.
The evidence, the rejection of which is complained of in the sixth assignment, should have been received. The contract provides that the plaintiff shall lay an extra strong lead water pipe, and the contractor substituted an iron pipe. tJnless we hold that the contractor had the right to thus change the specific stipulation in the agreement and use his own judgment instead of that of the defendants as to the pipe to be laid, we must require bim to pay to the defendants, not the difference between the iron and lead pipes, but the cost of laying a lead pipe as provided in the agreement. This is the proper measure of damages: Wade v. Haycock, 25 Pa. 382; Sticker v. Overpeck, 127 Pa. 446. The same principle sustains the seventh assignment.
The offer of the amended affidavit of claim, the rejection of which constitutes the ninth assignment of error, did not propose to show that it in any way was contradictory of anything that Morgan had stated in the original affidavit. Had it done so the evidence would have been competent: 2 Wigniore on Evidence, sec. 1067. The assignment is dismissed. "
The defendants’ objection to the amendment of the affidavit of claim was manifestly not made on the ground that it offended the mechanic’s lien law, but that it was contrary to the rule of court regulating amendments. We must rule on the specific objection made at the trial: Danley v. Danley, 179 Pa. 170. If the objections now taken to the amendment had been made in the court below at the time they were offered, we would have a different question before us. Possibly the learned judge would have ruled differently had those objections been made. The court below is the best judge of its own rules and, seeing no plain error in allowing the amendment, the first assignment must be overruled-.
We do not deem it necessary to notice specially any of the other assignments of error. As, however, the case goes back for a retrial, it may not be out of place to suggest that over and beyond the- question of substantial performance is whether the contract was complied with to the satisfaction of the owner. That question seems to have been lost sight of in the trial of the cause. The reason may be attributable to the manner in which the defendants’ case' was presented. The contract provides that the contractor shall furnish all the materials and
If, as the case is presented on the next trial, the question of substantial performance is to be determined, the. court should give explicit instructions to the jury on the subject, defining clearly what is required to sustain a claim of that character. In Gillespie Tool Co. v. Wilson, 123 Pa. 19, this court, by Sterrett, J., said (p. 26): “The equitable doctrine of substantial performance is intended for the protection and relief of those who have faithfully and honestly endeavored to perform their contracts in all material and substantial particulars, so that their right to compensation may not be forfeited by reason of mere technical, inadvertent, or unimportant omissions or defects. It is incumbent on him who invokes this protection to present a case in which there has been no willful omission or departure from the terms of his contract. If he fails to do so, the question of substantial performance should not be submitted to the jury.”
The defendants suggest the insufficiency of the charge in certain respects. If any specific instructions were desired, the court should have been requested to give them.
The judgment is reversed with a venire facias de novo.