259 Pa. 241 | Pa. | 1918
Opinion by
This is an action of assumpsit to recover a balance alleged to be due for railroad construction.
Defendant is a Virginia railroad company and plaintiff is a Pennsylvania construction corporation. In the spring of 1915 defendant awarded plaintiff contracts for the construction of two sections of railroad bed in Virginia. One of the contracts bears date of March 31st and the other April 8,1915. Each contract calls for the completion of the work on or before December 1st of that
The defendant filed an affidavit of defense, raising questions of law only, in accordance with Section 20 of the Practice Act of May 14, 1915, P. L. 483-486. This was in effect a demurrer to plaintiff’s statement, and, after hearing thereon, the court below filed an opinion and entered judgment for the defendant; from which plaintiff took this appeal. The practice accords with the statute and the conclusion of the lower court seems free from error. Being a demurrer, plaintiff’s statement must be self-sustaining and set out a good cause of action. The only claim here made is on a quantum meruit to recover for the value of the work as done, on the theory that the original contracts had been abrogated. It is not a suit for extra work, or for extra pay because of force or double-shift work, or for damages for delay caused by defendant’s default. It ignores the original contracts, while properly setting out copies thereof, and sues for the value of the work as if no price had ever been fixed. This in our opinion cannot be done. The new arrangement made no change in the work to be done or in the price to be paid. The case is quite similar
A new agreement will supersede the old so far as they cannot be executed together. See Ellmaker v. Franklin Fire Insurance Co., 6 W. & S. 439; Prouty v. Kreamer, 199 Pa. 273, 276. In the case at bar plaintiff had the right under the original contracts to complete the work before the first of December, so the alleged new agreement to speed up the work and finish it at an earlier date did not conflict with the other; both could be executed together. The new arrangement referred only to the matter of speeding up and completion of the work, as to all else the old contract was not changed. What plaintiff did amounted to a fulfillment of the original contracts. The extent to which a new contract supersedes the old depends upon the nature of the change and the intention of the parties. Here there is nothing to indicate that any change was intended except in the matter of time. In fact the acts of the parties rebut such intention. The notices which plaintiff avers were given defendant, above referred to as to additional compensation, show that plaintiff did not then consider the original contracts terminated or that the work was being done on a quantum meruit.' The additional compensation clearly referred to a claim for pay, beyond that named in the original contracts, because of the speed work. If the work was to be paid for at its reasonable value as force work when so paid there would be nothing-more due and there could be no claim for additional compensation. Aside from that, as we understand the facts, the work was paid for on monthly estimates and at the price named in the original contracts until the end. Parties, who after making a new contract, continue to act
In the case of Malone & Son v. Philadelphia & Reading R. R., 157 Pa. 430, relied upon by plaintiff, the facts were different. That was a contract for building a bridge, enlarging tunnels, approaches thereto, etc., and it was substantially changed by subsequent agreement. The manner of enlarging the tunnel was changed from removing loose material at the bottom to excavation of rock at the top thereby greatly increasing the cost, and the approaches were greatly enlarged. In fact one part of the work was made six times as expensive as that called for in the original contract. There the contracts could not stand together and the new was held to supplant the old.
The parties to a written contract may modify or set it aside. The question here is, did they do so and to what extent? The statement sets out copies of letters in confirmation of the alleged verbal agreement. And while they show that plaintiff promised to speed up and double shift, they do not show an agreement on its part to complete the work at the earlier dates requested in defendant’s letters. The legal effect of writings attached to the pleadings is for the court and cannot be controlled by the averments of the parties: Leechburg Building & Loan Association v. Kinter, 233 Pa. 354. Letters exchanged in confirmation of a verbal agreement will be presumed to correctly state it, especially where they are retained without objection. Plaintiff’s original bid refers to double shift as one of its methods of work; and the contracts authorize the chief engineer to speed up the work, but not to require its completion before the time.specified.
The assignments of error are overruled and the judgment is affirmed.