184 Pa. 208 | Pa. | 1898
Opinion by
There was a large amount of very intelligent and important testimony on the trial, to the effect that the cause of the falling of the arches was the weakness and insufficiency of the iron work to sustain the weight of the arches. As this was one of the questions submitted to the jury, and the verdict was in favor of the plaintiffs, it must be presumed that they found the iron work to be insufficient, and that this was the cause of the falling of the arches. A careful reading of the testimony on both sides convinces us that the finding of the verdict on that subject was correct. The case is practically argued on the part of the defendant upon the basis that the verdict is conclusive in relation to this matter, and therefore the rule is invoked that
The rule is not strictly and in terms applicable to this case, because the building was completed and was accepted by the owner. And it was completed by the present plaintiffs, the contractors. But a portion of the work was done by another contractor. That is, the filling in of the arches between the beams where the arches had fallen out or been removed for fear of their falling, was done by another sub contractor than the ones who had put in the first fireproofing. This was done at the instance of the architect, and the question is, so far as this matter is concerned, who is responsible for that work, and are the plaintiffs chargeable with a deduction on that account. There is perhaps another reason why the rule invoked for the defendant, is inapplicable. It has an exception if the work to
The eleventh assignment is not sustained. The contract provided that either tile or improved make of concrete construction may be used, and that bids should state what material is contemplated. The contractors having named tile as their material, and their bid having been accepted, and there being no defect in the tiles used, this was a compliance with the contract, and when they actually furnished perfectly good tiling and placed it in the arches, they complied with their contract in
The remaining assignments relate to the claim for extras. There was an amount of $522.38 of extras, which was admitted to be due.' A portion of the claim was for work done in removing the material that had fallen from the arches, and the remainder of the material that had not fallen. This it is claimed was done by specific orders of the architect to'the subcontractor, without consulting with the plaintiffs. There were a few other items, but as to the whole, the evidence raised a question of waiver of the provision of the contract which required that no claims for extras should be made “ unless the same shall be done in pursuance of a written order from the architect.” There was evidence enough on that subject to justify the court in leaving the question to the juiy, and we cannot say there was error in so doing. There was a large diminution by the verdict of the amount of the plaintiffs’ claim for extras, and it is not at all clear that any injustice was done to the appellant by the verdict of the jury in regard to these matters. We do not think that error has been shown in any of the assignments after the eleventh, and they are therefore all dismissed.
Judgment affirmed.