214 Pa. 568 | Pa. | 1906
Opinion by
By written articles of agreement entered into June 1, 1902, George F. Payne & Company, here the appellees, undertook to construct and erect for Percival Roberts, Jr., the appellant, a dwelling house at Narberth, Penna., in accordance with certain plans and specifications made part of the agreement, to provide all the materials for the same, and perform the work in connection therewith in a good and workmanlike manner, under the direction of the architects, Peabody & Stearns, for the consideration of $247,000. The work under the contract was duly entered upon, and had so far progressed that the walls of the house were in the course of erection, some of them being as high as the second story, when the contractors were required by the owner to cease work and turn over to him the unfinished building, to be completed by his own workmen. The owner claimed the right to do this under the third clause in the contract, which reads as follows : “ In case of any failure or unreasonable delay of the said party of the second part, whether by act or default in the performance of any of the
With the frequent disputes which arose between owner and contractors as the work progressed, we have no concern. We may wholly dismiss them from consideration, since it was but a single act of the owner, and that the final one, requiring the contractors to give over the work, that is complained of as the
Such a provision as this, requiring the work and materials to meet the satisfaction of the architects, is neither unusual nor unreasonable. True, it confides much in the judgment, impartiality and integrity of the architect; but it has long been a feature in building contracts, and that it obtains to-day as largely as ever shows that experience has approved it. In Kennedy v. Poor, 151 Pa. 472, there was a similar agreement and it is thus referred to: “Presumably no more suitable selection can be made than the architect who draws the plans and who is to superintend the work. He is certainly more competent to determine any difficulty that might arise than a jury indifferently chosen and without the requisite information or power to require it: Monongahela Nav. Co. v. Fenlon, 4 W. & S. 205. This reference was an essential part of the contract, voluntarily entered into by the parties. There was no rule or policy of law which forbadeit; and neither party is at liberty to depart from it.”
Nothing we have said with respect to this contract, and the rights and obligations of the parties thereunder, is at variance with the views of the learned trial judge, except as to the operation of this reference clause. He held that the condemnation of the walls by the architects, would have given the owner the right to take possession of the building and complete it, except for the provision in the contract reserving to either party the right of appeal. We are of opinion that this clause in the contract has no applicability to the contention here, and that the rejection of the walls by the architects was final and conclusive. Notwithstanding all we have said, however, and wholly independent of the reference clause, the plaintiffs would still have the right to maintain an action on the contract, if they could show that the dissatisfaction expressed by the architects, was brought about through collusion between the latter and the owner, in order to disturb and defeat the plaintiff in the lawful exercise of their work. While the pleadings in the case define no such issue, yet considerable evidence was admitted which plaintiffs insist warrants an inference that the decision of the architects did not reflect their honest and impartial judgment, but the views and wishes of a dissatisfied owner. So far as we
Admitting that there was evidence to establish each and all of the particular facts relied upon, the case falls short of meeting. the requirements. The alleged substantial compliance with the contract was very far from being an admitted fact; although on the issue the finding was for the plaintiff, yet the testimony in regard to it was so divergent that the finding of the jury would he an insufficient basis for an inference of bad faith in the architects. It was a subject upon which the expert witnesses, apparently of equal credit, differed "widely and irreconcilably. The dissatisfaction of the owner with the work, and his desire, if this be admitted, to complete it himself, is a circumstance which, if supported by other facts, would be eirtitled to some weight in the inquiry. The fact, if it be a fact,
It results from what we have said that defendant’s first specification of error — -that the court erred in declining to charge as requested in defendant’s seventh point, that under the evidence the verdict must be in favor of the defendant — must be sustained.
Judgment reversed.