36 Pa. Super. 562 | Pa. Super. Ct. | 1908
Opinion bt
This was a scire facias upon a municipal claim for paving the cartway of the street upon which the defendant’s premises abut. The defendant pleaded non assumpsit, payment with leave, etc., with notice that he would offer evidence of the special matter set forth in the affidavit of defense. Verdict having been rendered for the plaintiff, the defendant moved for judgment in his favor non obstante veredicto. This motion was dismissed and judgment was entered in accordance with the verdict, whereupon the defendant took this appeal. The only matters assigned as errors are, first, the direction to.
The Act of April 22, 1905, P. L. 286, provides, inter alia, that whenever upon the trial of any issue, a point requesting binding instructions has been reserved or declined, the party presenting the point may, within certain limitations as to time, move the court to have all the evidence taken upon the trial duly certified and filed so as to become part of the record, and for judgment non obstante veredicto upon the whole record. The motion, for judgment ought to be but is not set forth at length anywhere in the appellant’s paper-book, and while the docket entries, as printed, show that such motion was made, they do not show by what authority the court was asked to enter the judgment moved for. If) • as may be surmised from the form of the specification of error, the court was asked to exercise the jurisdiction conferred by the act of 1905, the motion was properly refused, because the right there given is conditioned upon the party making the motion having presented, before verdict, a point requesting binding instructions, and the record fails to show that the defendant presented such point.
The power to reserve questions of law, which was given to judges of the district court of Philadelphia by sec. 5 of the Act of March 28,1835, P. L. 88, was extended to judges of the common pleas by the Act of April 22, 1863, P. L. 554, and still remains notwithstanding the act of 1905. But even if it may be inferred from the assignment of error that the defendant’s motion was for. judgment non obstante veredicto upon, a question of law reserved, the obstacle which prevents him from demanding a review, of the court’s disposition of that motion is that the record as printed in his paper-book fails to show that it was excepted to. This, it has been held in numerous cases and is apparent from the language of the act, is an essential prerequisite to a review by the appellate court of a judgment entered under this act: Miller v. Hershey, 59 Pa. 64; Northumberland County Bank v. Eyer, 60 Pa. 436; Merkel v. Berks Co., 81 * Pa. 505; Yard v. Pancoast, 108 Pa. 384; Central Bank
■ It follows that in either view of the motion the second assignment of error should be dismissed.
But there is no ground for presumption that the judgment was entered under the act of 1863; therefore, although the defendant did not except to the judgment, he is not precluded from pressing - his first- assignment of error which is based on an exception to the charge. We therefore proceed to a consideration of the question whether it was proper to give binding instruction in favor of the plaintiff, and in such consideration the general rule, to which this case is not an exception, must be kept in view that when proof of a fact depends upon oral testimony,-it is the province of the jury to decide under instructions from the court as to the law applicable to the facts, and subject to the salutary power of the court to award a new trial if they should deem the verdict contrary to the weight of the evidence: Reel v. Elder, 62 Pa. 308.
In the contract under which the pavement was laid the city agreed to pay the contractor for the paving and contingent work done under the contract “in assessment bills made out and signed by the proper officers, or in warrants drawn upon the city treasury,” the sum of $2.20 per square yard. The contractor paved the street in accordance with the stipulations of the contract, excepting in the particular to which we shall hereafter refer, and after the completion of the work, an assessment bill, showing the amount of the assessment, the number of square yards -of paving for which the defendant was assessed, the rate per square yard, and the frontage of his property on the street, was -delivered to the contractor. It is stated in this bill that the measurements were made by H. M. Fuller, the district surveyor, and it was signed by him. On the back are the written approval of William H. Brooks, chief of the bureau of highways, and the certificate of William A. Fredericks, as assistant commissioner of the district, that the “within work has been done in accordance with existing ordinances.” No question is raised as to these being the proper
One of the stipulations of the contract was that the contractor should deliver the materials and do the work “in strict and exact accordance with proposals and specifications” attached to and made part of the contract; two of which specifications were as follows: (1) “The finished grade for the gutters shall be generally five inches below the top of the curb, except where a change is directed by the district surveyor to insure proper surface drainage;” (2) “The crowning or rise of the finished pavement from the gutters toward the center of the street shall be at the rate of two and one-quarter feet per one hundred feet, except at intersections, or where the surface drainage demands a different crown, as may be directed by the district surveyor. Gutter or crown stakes must be set every fifty feet.”
Another stipulation of the contract was that the contractor should execute and finish the paving “in accordance with all the ordinances and resolutions of councils relating to paving,” and to “fully and faithfully comply with all their provisions,” one of which ordinances, adopted in 1885, contains this provision: “Whenever a street is graded or paved it shall be so finished and shaped that the gutters will be five inches beloyv the regulation curb elevation, except at city inlets and in streets where the chief engineer and surveyor shall certify that a different depth of gutter is advisable. The crown of the street or cross slope from the middle portion of the street to the gutters shall be at the rate of two feet per one hundred feet of sheet asphalt or a continuous concrete pavement.”
There was evidence from which the jury could have found, if the question had been submitted to them, that the district surveyor directed one of his assistants to set the gutter and crown stakes for the paving of the street; that this assistant first set the stakes so as to make the gutters and slope of the pavement conform substantially to the specifications of the
In rebuttal, the plaintiff introduced the testimony of witnesses from which the jury could have found that a highway inspector of the city was present nearly all of the time during the progress of the work, that Mr. Brooks, the chief of the highway bureau, and Mr. Fredericks, his assistant, came there occasionally and that the former ordered the change; but whether the facts as to these matters (even assuming that they would be controlling, which they would not be) were as testified to was for the jury, not the court, to determine.
Moreover, neither of these officials was the officer named in the specifications or the officer referred to in the ordinance of 1885. Mr. Fuller, the district surveyor, who was the official referred to in the specifications, and Mr. Webster, the chief engineer and surveyor of the city, who was the official referred to in the ordinance of 1885, each testified that he did not order' the change, and it was not conclusively established by other evidence — certainly not so conclusively as to warrant the court in assuming it to be an uncontroverted fact — that either of these officials consented to it.
Furthermore, there is no evidence that this change was required “to insure proper surface drainage,” as set forth in the specifications, or was “advisable,” within the true intent and meaning of the ordinance of 1885. The sole purpose of or occasion for the change, of which any hint is given in the testimony, is that it was to serve the business convenience of the National Biscuit Company, the property owner on the opposite side of the street.
The natural consequence of this illegal departure from the
It is argued that as the variation from the specifications and the ordinance was visible and must have been known to the defendant before the paving was completed, it was his duty if he desired to raise any objection to it, to inform the city and take some steps to stop the work, and not having done so, he cannot raise the objection now. But the variation would not have been in violation of the ordinance, if the chief engineer and surveyor had certified that it was advisable, and there is no evidence that the defendant knew that he had not so certified. We do not admit that the defendant would have been estopped, even if he had known that fact before the work was completed, but it is unnecessary to go into that question, for it is very clear that, in the absence of evidence that he had such knowledge, the court would not have been justified in
Another objection urged by appellee’s counsel against the defense is, that the admitted variation from the specifications and the ordinance was ratified and waived. It should be noticed that there is no evidence of the city’s ratification and waiver except that of which we have given a summary above; there was no such action by the corporate authorities by resolution or ordinance as was shown in McKnight v. Pittsburg, 91 Pa. 273, and City v. Hays, 93 Pa. 72. In support of their contention counsel cite Philadelphia v. Brooke, 81 Pa. 23; Fell v. Philadelphia, 81 Pa. 58; Erie v. Moody, 171 Pa. 610; Philadelphia v. Gorgas, 180 Pa. 296; Harrisburg v. Shepler, 7 Pa. Superior Ct. 491; Wabash Avenue, 26 Pa. Superior Ct. 305. These and other cases of the same class do hold that there are many questions relating to the formal details of agreements between the city and its contractors, and to their execution and performance, which cannot be raised by the defendant in such a proceeding as this, where it appears that the work has been accepted by city officials. But other cases show quite as distinctly that it is not an invariable rule that no question whatever which relates to the performance of the contract can be raised by the defendant in such a proceeding. In Pepper v. Philadelphia, 114 Pa. 96, a principle was enunciated which would entitle the defendant to go to the jury, unless he is precluded by the act of 1843 to which we shall refer later. Justice Tbxtnkey, who delivered the opinion of the court, said: “But in this state, where by the laws and ordinances the contractor receives the assessment bills in payment from the city, and it turns out that his work was so defectively done as to be worthless, he has no just right to recover in an action against the property owner, and the latter is not precluded from the defense because he is not a nominal party to the contract. If the work was substantially done as contracted for, answers the intended purpose, but in some minor particulars which do not materially affect its usefulness
The next question to.be considered is whether the first section of the Act of April 19, 1843, P. L. 342, prevents the defendant from setting up a defense upon the facts to which we have alluded. This is a local act, applicable only to Philadelphia, and according to Craig v. Philadelphia, 89 Pa. 265, and Pepper v. Philadelphia, 114 Pa. 96, applicable only to certain portions of the city. The act declares, inter alia, that upon the trial of any action, whether of scire facias or otherwise, for the recovery of any sum claimed “for water pipe, curbing, paving, work done and materials furnished, and for which the said district now by law have a lien, .... it shall only be lawful for the defendant to deny that the said work was done or materials furnished, or prove that the price charged therefor is greater than the value thereof, or that the amount claimed has been paid or released.” If the words of the section which specify the three defenses that may be set up be taken literally and without regard to the context, it would be impossible for the defendant to show, that his property was not liable to assessment at all, because, for example, the pavement was laid in rural territory, or the street had been previously paved by the municipality at the expense of the abutters, or statutory conditions precedent to paving at the expense of the abutters had not been complied with. These are extreme illustrations, it is true, but they are pertinent, because they bring prominently into view the consequences of holding that the legislature intended to shut out every defense excepting those specifically mentioned, even though it be a defense based on a violation, to his injury, of a provision of the constitution, or of
The remaining objection urged by the appellee is that the defense is not good “because,” to quote from the brief of counsel, “the defect and irregularity alleged and complained of is
The judgment is reversed and venire facias de novo awarded.