Otto Gas Engine Works v. Pepper
228 Pa. 205
Pa.
1910
Check Treatment

Opinion by

Mr. Justice Brown,

On January 30, 1905, the appellee entered into a written contract with the appellant for the installation of an electric light plant in a building owned and used by him *209as an apartment house, in the city of Philadelphia. What the company was to furnish and what the appellee was to get from it for the price he was to pay are explicitly stated in the agreement between them, the last clause of which is, “And it is further agreed that this instrument evidences the whole contract under which the said engine is received by the undersigned.” What the appellee was to get were known and definitely described things, and the terms and conditions under which he was to get them were definitely set forth in the agreement. The appellant supplied and installed the engines and dynamos upon foundations which it built. On March 23, 1905, it started the engines, when it was immediately found that the noise, vibration and shock were so great that they rendered appellee’s building and the premises immediately to the south practically uninhabitable. The rest, sleep and comfort of the occupants of appellee’s house were interfered with and the owner of the adjoining premises threatened to apply for an injunction to abate the nuisance from which he suffered, for the vibration caused dishes and plates to rattle upon the table in the dining room and on the ranges in the kitchen, and the floors of his sitting room and library shook, so as to render the use of the same impossible. Some efforts were made, extending over a period of a month, to correct the evil, the existence of which the company’s superintendent admitted, but these efforts were abandoned and shortly afterwards this suit was brought. To the defense that the appellee attempted to make, that there had been a parol contemporaneous agreement amounting to a guaranty that there would be no noise, vibration or shock, the answer of the appellant was that there was no such condition in the agreement, which, according to its express terms, evidenced the whole contract between them.

It is inconceivable that the appellee would have contracted with the appellant for the installation of a plant that would be so utterly useless to him as that furnished, and it is equally so that the appellant would have at*210tempted to sell it to him; but the. contention of the latter is that, as the appellee got what it contracted to give him, he must pay. To his defense of the parol contemporaneous agreement reply is made that it was not so nominated in the bond. It is to be conceded that the appellant has the right to stand upon its contract, but before it is to be permitted to recover it is bound to show that it has performed the same in all respects. Upon this issue alone the case should have gone to the jury, and, if the learned trial judge had consistently adhered to his instruction to them in his charge and to his answer to plaintiff’s third point, that they were not to consider the alleged contemporaneous agreement, but the written one alone as the contract between the parties, and that if the plaintiff furnished and erected the gas engines, generators, switch board, etc., as provided by the written contract, their verdict should be in its favor, the record would be free from error, for there is no assignment to the admission or rejection of evidence.

One of the covenants of the appellant was to lay a necessary concrete foundation for the plant. The superintendent of the company, with whom all negotiations were had, admitted on the trial that this concrete foundation should have extended, according to the rules under which his company worked, sixty inches below the floor level. It was proven by a number of witnesses that the foundation went below that level only about twenty-two inches; that it was not only not laid to the necessary depth, but did not go down to solid earth; that it rested partly on loose ashes, on an old, abandoned brick wall and on several old, abandoned drain pipes, and, according to the testimony of a number of witnesses, the effect on the building in which the engines were installed and upon that adjoining it, resulting from this defective foundation, would be to send the excessive vibrations and shocks through both. The real issue, and the only one, therefore, as counsel for appellee properly state it in their statement of the question involved, was as to the *211laying of the necessary concrete foundation, for if, as a result of its not being properly laid, the engines made the great and unusual noises, vibrations and shocks referred to both in appellee’s house and in that adjoining, the plaintiff ought not to be allowed to recover. Instead of consistently following the proper instructions to which we have referred and his correct answer to defendant’s fourth point, the learned trial judge told the jury that they might determine whether, as a fact, upon the proofs offered, the noise, vibrations and shock were undue and more than a reasonable man in the position of the appellee should have anticipated and more than the appellant might have claimed as ordinary and reasonable, and, if they should so find, a defense was made out. This was error, for if the appellant had in all respects performed its contract with the appellee, and he had obtained what his contract called for, payment was not to be avoided simply because there might have been undue noise, vibration and shock. Though in his general charge the trial judge had told the jury that they were to disregard entirely the parol contemporaneous agreement, in answering the tenth point submitted by the defendant he instructed them that, if they believed the appellee was without skill or experience in the matter of installing engines and dynamos, and relied upon the statements and representations made by the appellant’s agent as to their freedom from noise, vibration and shock, so as to make the plant fit and suitable for installation and operation in an apartment, and the engines installed and operated produced unusual noise, vibration and shock, so as to be unsuitable for use in the house, the plaintiff could not recover. The case thus went to the jury under certain instructions that were contradictory of correct ones. They may have followed the incorrect instructions and denied a recovery merely on the ground that there had been undue vibration and shock, or they may have concluded that no recovery could be had in view of the representation by plaintiff as to the freedom of the plant *212from vibration and . shock. No one can tell which instructions were followed, and the judgment must, therefore, be reversed: Gearing v. Lacher, 146 Pa. 397; Wolf v. Wolf, 158 Pa. 621; Baker v. Hagey, 177 Pa. 128.

The third and sixth assignments of error are sustained and the judgment is reversed with a venire facias de novo.