235 Pa. 347 | Pa. | 1912
Opinion by
The defendant below offered no testimony, and, on the case as made out by the plaintiff, a verdict was directed in his favor upon which the judgment appealed from was subsequently entered. On August 3, 1907, the appellee entered into a written contract, in the city of Philadelphia, with the appellant, to provide, in accordance with certain drawings and specifications, all the materials and perform all the work for the alterations and additions to a building situated at Broad and Walnut streets, in the city of Philadelphia. The building was known as the Hepner Hair Emporium, and Isman, the appellant, signed the contract “as agent for Hepner Hair Emporium Co.” The work called for by the contract was to be done under the direction of Stearns & Castor, architects employed by Isman. For the work called for by the contract the appellee was to receive the sum of $17,500, and all payments for work done were to be due when certificates for the same were issued by the architects. Provision was made for payment for extra or additional work. In accordance with the terms and provisions of the contract and under the direction of the said architects, the appellee, between August 7, tl907, and November 20 of the same year, provided all
It does not appear that, when the appellee entered into the contract, or at any time during its performance, he knew that the principal for whom Isman, the appellant, had assumed to act, was a corporation, much less a foreign one, incapable of transacting business in this state. On the contrary, his uncontradicted testimony is that he did not learn that the Hepner Hair Emporium Company was a corporation until the latter part of June, 1908 — more than six months after he had performed his contract and received the final certificate of the architects as to the amount due him. Before en
But it is contended by the appellant, that, even if he is liable on the contract with the appellee, he cannot be held accountable for $4,042.72 of the balance claimed to be due, because these figures represent the cost of work done, either under verbal orders given by the architects or under their written orders, in which they failed to state the amount to be paid for the extra work. A requirement of the contract was that no alterations — that is, changes in •'he work as defined by the specifications— should be made except upon the written order of the architects, in which the amount to be paid for such alterations was to be stated. Unless this provision was
It is not disputed that the appellee did the extra work and furnished the extra materials charged for. On the contrary, in addition to an admission in the affidavit of defense, which was offered in evidence, it was admitted by appellant’s counsel on the trial that the bill for the extras was correct in amount, and liability to pay for them was denied solely on the ground that they had not been ordered in the manner provided for in the contract. On December 11, 1907, appellant’s architects wrote the appellee as follows: “On December 5 we sent to Mr. Felix Isman’s office final certificate covering the balance due you on the Broad and Walnut street job. We enclose herewith memo as to just how we made the account up.” The admission of this letter is the subject of the first assignment of error. Its admission could not have injured the defendant, and we have not been informed by counsel for appellant why it should not have been admitted. It was a mere notice from the architects to the appellee that, as he had performed his contract, they had, in pursuance of their duties, sent to Isman, with whom he had contracted, a final estimate showing the amount due. The appellee was entitled to this notice, and proof that it had been given him by the architects did the appellant no possible harm. After the architects had approved the appellee’s bill and given him a final certificate, he handed the same to the appellant and the latter paid on that final certificate, without questioning it, $5,000, as follows: Two thousand five hundred dollars by his two individual notes, given December 23, 1907, and $2,500 by two similar notes, given February 19, 1908. The work was done by the appellee, was accepted by the appellant and, upon the final certificate, which was in his hands, he gave his own notes to the appellee for $5,000 in payment on account of what was due. In giving a written order to the appellee to do some extra work, the architects, instead of stating the
The assignments of error are all overruled and the judgment is affirmed.