244 Pa. 186 | Pa. | 1914
Opinion by
The burden was on plaintiff to prove substantial performance of the contract in order to sustain a recovery in this action. The contract being entire there must be full or substantial performance before the liability to pay attaches. Where there has been substantial and bona fide performance of an entire contract, but failure to perform in some particulars not essential to the enjoyment of the part performed, there may be a recovery of the contract price, subject to the right of defendant to set-off damages resulting from the breach. This rule has been applied over and over again to controversies of this character in our State. As applied to the facts of the present case the rule was very well stated in the following language by Mr. Justice Bell many years ago: “And, perhaps, it may be asserted, that where a thing is so far perfected as to answer the intended purpose, and it is taken possession of and turned to that purpose by the party for whom it is constructed, no mere imperfection or omission, which does not virtually affect its usefulness, can be interposed to prevent a recovery, subject to a deduction for damages, consequent upon the imperfection complained of”: Danville Bridge Co. v. Pomroy, 15 Pa. 151. But even in such a case the question of substantial performance arises and must be determined in the first instance. We do not agree that there can be no recovery here because of failure to substantially perform the contract. This under the evidence was a question of fact for the jury and it was so submitted by the learned trial judge in a fair and impartial charge on this branch of the case. Nor do we agree that it was error to refuse the ten points submitted by defendant at the trial. Each of these points asked for binding instructions and according to our view it would have been error for the trial judge to direct a verdict in favor of defendant.- This was clearly a case for the jury whose province it was to determine the matters in controversy between the parties.
We cannot undertake to discuss in detail each of the thirty-one assignments of error, and must be content to indicate in a general way our views respecting the questions raised by this appeal. It is apparent, however, that most of the matters about which complaint is made relate directly or indirectly to the question of damages, and hence the necessity of a definite rule as a guide for all concerned in the trial. The admission or rejection of testimony as to the damages must largely depend upon the rule by which they are measured. Two entirely different measures were-set up at the trial and this makes it all the more difficult to discuss each of the numerous assignments in which error was alleged in this respect. On the whole we deem it wise to indicate the general principles of law upon which the case should be tried, and then counsel can conduct the trial in accordance therewith. This we will do in the following order:
2. The acceptance of the elevator by defendant, if not completed in compliance with the terms of the contract, does not preclude a claim for damages by way of set-off as a deduction from the contract price for imperfections and deficiencies in the work. The party accepting part performance of an entire contract may set off damages in an action brought to recover the contract price: Shaw v. Badger, 12 S. & R. 275; Fessler v. Love, 43 Pa. 313; Monocacy Bridge Company v. Bridge Mfg. Co., 83 Pa. 517.
3. No hard and fast rule as to the measure of damages can be laid down in this class of cases. Much depends upon the facts and circumstances of each particular case, and as applied to machinery, the character and use to which it was intended to be adapted. There is room for difference of opinion as to the proper measure of damages to be applied in the present case, as appears from the course of the trial in the court below, and, indeed, the same may be said of our consideration of the question here. Our cases furnish no decisive answer to the point involved. However, we have concluded upon reflection that under the facts as they appear in this record the true measure of damages is the difference between the actual value of the elevator at the time it was accepted by appellant, and what its value would have been if it had been constructed in exact compliance with the contract and specifications. In Himes v. Kiehl, 154 Pa. 190, above cited, it was held that the measure of
Under the second head of its printed argument, appellant suggests that it should have been permitted to show the difference between the value of the elevator if the contract had been complied with and its value as delivered. If we understand the meaning of this contention, the measure of damages suggested would not only be proper but in accordance with the rule hereinbefore stated. It should be understood, however, that the value. of the elevator built according to specifications was its contract price, and the value of the elevator delivered must be fixed at what it was worth when accepted. The difference would measure the damages. When appellant accepted the elevator, it took it as it was at that time.and for what it was then worth, and cannot now be heard to say that new pumps should have been added or that additional machinery should have been provided in order to make more effective the parts and machinery installed and accepted. Appellant must stand upon the value of the elevator accepted by it, and if this value was less than the value of the elevator contracted for
We see no substantial merit in the first, second; third, fourth, fifth, ninth, tenth, eleventh, twelfth, thirteenth, sixteenth, seventeenth, eighteenth, nineteenth, twentieth, twenty-first, twenty-second and twenty-fourth assignments of error and they are therefore overruled.
We do not undertake to pass, specifically upon the merits of each, of the remaining assignments of error, as in the state of the record this could not be satisfactorily done, But they are sustained in so far as they ¿re in conflict with. the. views hereinbefore expressed as to the ■rules of law which should be applied in the. trial of the •case. ■
Judgment' reversed and a venire facias de novo awarded.