165 Pa. 505 | Pa. | 1895
Opinion by
The plaintiffs are building contractors who erected a dwelling house for the defendant in the city of Pittsburg under a written agreement. This action is brought upon that agreement to recover an apparent balance due thereon. The defence set up is that part of the work, particularly the plastering, was not done as the contract required and that the defendant has sustained damages that should be applied to reduce or extinguish the apparent balance sued for. The contract provided that the plastering should be done with a material known as adamant. The plaintiffs sublet this part of the work, but they bound their sub-contractor to use the same material that they were bound to use. After the subletting, and without the knowledge of the plaintiffs, the architect and the sub-contractor substituted another sort of material known as the “ Fitzgerald plaster ” in place of the adamant, and the plastering was actually done with the Fitzgerald plaster. The result showed that it had been improperly prepared by mixing the dry plaster with lime not sufficiently slacked, so that the process of slacking continued to go on after the plaster was spread upon the walls and the walls properly smoothed or surfaced. This caused the walls to be spotted and the surface irregular by the appearance of
. The learned trial judge instructed the jury, if they found the fact to be as alleged by the plaintiffs their legal position was well taken, and the damages so sustained were not chargeable against the apparent balance due them. The second and third assignments of error relate to this ruling. If the fact was, as the defendant evidently supposed it to be when this line of defence was entered upon, that the material with which the plastering was done was changed under the direction or with the consent of the plaintiffs, then their liability for all the injury sustained by reason of such departure from the terms of the contract would be clear, and the amount when ascertained could be set off against any balance appearing to be due under the contract. But if, on the other hand, the change of material was due to the defendant’s own act or to the act of her agent, the architect, without the knowledge of the plaintiffs, the results of such change would be chargeable to the interference of herself or her agent between the contractor and the sub-contractor, for which the contractor could not be held responsible. The learned judge was right therefore in submitting this question of fact to the jury and in his direction in regard to the effect of their finding upon it.
The only other assignment of error is the first, which complains that the court did not give a binding instruction to the jury to find in favor of the defendant. This direction was probably asked upon the theory that the action was prematurely brought because no particular sum was stated in.the certificate of the architect to be due to the plaintiffs. The certificate refers to the contract in which the amounts of the several payments are distinctly stated and sets out the fact that the contractors are “ entitled to a payment, being the last payment on contract price for your residence.” As though desirous to make the amount still more certain the architect appends to his certificate a “ remark ” stating that the payment now due as the last pay
The judgment is affirmed.
