184 Pa. 251 | Pa. | 1898
Opinion by
On June 11, 1892, the plaintiff entered into a written contract with defendant to erect a Bessemer steel plant of eight buildings, equipped with all the machinery necessary for the operation of a Bessemer steel pipe manufactory. The defendant agreed to have all building foundations ready for the super
The work was not completed until about January 1, 1894, seven months after the date fixed in the contract, although defendant was partly in possession from October, 1893. The consideration was to be $340,000, in nearly equal instalments at sixty days’ intervals, commencing September 15, 1892. The plaintiff admitted payments to the amount of $323,300.65 on the contract, but claimed the additional sum of $53,011.38, for changes and additions to the original specifications, which, with a balance unpaid on the principal contract of $16,699.35, made the entire sum claimed $69,710.73. The plaintiff averred in its statement: 1. The contract and amount of claim. 2. That the delay of plaintiff in completion of contract of June 1,1893, was attributable solely to defendant’s conduct; that it had not prepared the foundations for the structures by December 18, 1892; that at its request, during the progress of the work, costly and extensive changes were made in the original plans, and large additions thereto, and by reason thereof the time was prolonged, but that, nevertheless, the work was completed as soon as possible. The affidavit of defense a/verred that defendant was entitled to have set off the $300 per day for so many days as plaintiff was in default after June 1,1893, in completion of building; denied the foundations were not ready at the times named in the contract; averred that all changes in the plans and work were voluntary on part of plaintiff, and that the delay
The statement of claim and affidavit of defense made up the issue as tried in the court below. The evidence on each side was voluminous, and the contention was wholly one of fact to be settled by the jury; they found for plaintiff, $76,154.48, about the amount of plaintiff’s claim with interest, and we have this appeal by defendant, with fifteen assignments of error. The complaints of appellant in the assignments are that plaintiff failed to establish by competent evidence the facts on which it sought relief from strict performance of its contract as to time of completion, and further that the court below committed error in its instructions to the jury as to the rules which should control them in computation of defendant’s damages. As to the facts relied on by plaintiff to excuse it from strict performance, there was evidence tending to establish each one of them; contradicted, it is true, by evidence on part of defendant, but still' leaving the contention in such situation that the court could not say the evidence was insufficient; therefore, there was no error in submitting it to the jury.
Was there error in the statement of the rule for computation of defendant’s damages which may have led the jury away from the true rule, that fixed by the parties themselves in the contract ? Por it may be plausibly argued that if the jury once thought they were permitted to disregard the contract in this particular they would be inclined to make a new contract for the parties, and set up one allowing no damages for delay in completion, without regard to reasonableness. What was the instruction as to the liability for and measure of damages ? Plaintiff averred the delay was occasioned by failure of defendant to perform its stipulations in two particulars: 1. The foundations were not completed in time. 2. It failed to fill in the ground around the foundations in time. And, further: 8. Radical changes and large additions to the original plans were made at request of defendants while the work was in progress. It is obvious if there was evidence tending to support these averments, and the jury found they were proved, then the only further question was, did the acts of defendant cause the delay in completion ? Not merely cause some delay, but the whole
All are overruled and the judgment is affirmed.