Appeal, No. 66 | Pa. | Jan 5, 1914
Opinion by
This is an action of assumpsit to recover on a written agreement for services rendered by an architect to the defendant school district in preparing plans and superintending the construction of a school building. An affidavit of defense was filed and a plea was entered. The trial resulted in a verdict and judgment for the plaintiff. The defendant has appealed.
The plaintiff declared on an article of agreement, dated February 23, 1907, by which it appears that he was employed to render full professional services in the erection of a new school building for the borough, his
The defendant school district filed an elaborate affidavit of defense denying its liability, on the contract and setting up, inter alia, that before the building was completed an injunction was issued restraining the construction of the building on the ground that the contract for its construction was null and void as it involved an increase of the indebtedness of the school district to an amount exceeding two per cent, of the assessed valuation of the property without the assent of the electors; that before plaintiff rendered any services he had full knowledge that the district had no power to enter into the contract; and that both plaintiff and the contractor for the superstructure of the building had notice before any work was done under the contract for the superstructure, of such lack of authority in the district.
By leave of court, the plaintiff amended his statement whereby he waived his claim for that part of his services called for by the contract which was not performed, and claimed only that, part of the entire compensation which
At the trial the plaintiff testified, and he was uncontradicted, that when the contract was signed the board had not determined upon the size or kind of building, that nothing was said in his conferences with the board as to what the building would cost, and that he did not familiarize himself with the financial standing of the board. He testified at length to the performance of his duties under the contract, extending from the time of his employment down to the. time when work was stopped by the injunction; that after the injunction was served upon the board, they notified him that his services were no longer required; and that he had done everything required of him up to that time and all that remained was the superintendence of the part of the superstructure not yet completed. He testified and was corroborated by the testimony of several expert witnesses that the proportion of the work which had been done was about seven-eighths of the entire work and the compensation for the uncompleted portion of the work was worth, under his contract, one per cent, of the cost of the uncompleted portion of the building.
It appears from the testimony that a contract for the foundation work was awarded to C. K. Barnhart under which work was begun in August, 1907, and completed about the middle of November of that year; and that the contract for the superstructure was awarded June 9, 1908, after the reception of bids, to H. L. Kreusler, who did about $85,000 worth of work, beginning in July, 1908, and continuing until stopped by the injunction in September of that year. The debt incurred by this contract increased the indebtedness of the school district beyond the constitutional limit.
The defendant introduced evidence to show negligence and improper performance by plaintiff, but these issues aré not involved in this appeal. It also put in evidence the record of the equity case wherein the injunction
The appellant suggests that the assignments of error raise three questions: (1) Can there be a recovery of any amount; (2) if there can be, should the amendment to the statement have been allowed; (3) was the method of proving the amount of the claim the correct one? The last question is not argued in the printed brief and the second is only referred to in the suggestion that the amended statement had the effect of making the action one on a quantum meruit instead of on an express contract, thereby changing the cause of action declared on in the original statement. This is clearly a misapprehension on the part of the appellant as to the change made in the appellee’s claim by the amended statement. It did not change the action to one on a quantum meruit. The original statement declared on a written contract, and claimed a commission on the entire cost of the building. The amendment reduced the amount of the claim to that part of the entire compensation which was represented by the services actually performed by the plaintiff up to the timé defendant dispensed with his services. The contract continued to be the foundation of the action and, assuming it to be legal, the plaintiff was entitled to recover. The cause of action was correctly stated in the original statement, and the amendment enabled the plaintiff to state the proper measure of damages. Where a party has partly performed an entire contract and is prevented from completing performance by the act of the other party or by the law, he may recover in an action on the contract, and the measure of his damages is the contract price less the cost of completing the work: Harlow v. Beaver Falls Boro., 188 Pa. 263" court="Pa." date_filed="1898-10-31" href="https://app.midpage.ai/document/harlow-v-borough-of-beaver-falls-6244990?utm_source=webapp" opinion_id="6244990">188 Pa. 263. We think the amendment did not change the cause of action and was properly allowed.
The plaintiff’s contract with the board was one which it was authorized to make and was clearly legal when it was executed. The plaintiff was employed to prepare plans and specifications and superintend the construction of “a suitable school building.” It was the duty of the board to provide a proper school building for the district and in discharging this duty, the board was authorized to employ an architect to prepare plans and specifications for the building. There is nothing in the plaintiff’s agreement or in the evidence showing that at the time the agreement was made it was contemplated by either party that a subsequent illegal contract would be entered into by the board for the construction of the building, or that the board intended to exceed the constitutional limit of the district’s indebtedness in erecting the building, and an assumption of the fact is wholly arbitrary and unwarranted: Dowley v. Schiffer, 13 N.Y.S. 552" court="None" date_filed="1891-03-02" href="https://app.midpage.ai/document/dowley-v-schiffer-5544402?utm_source=webapp" opinion_id="5544402">13 N. Y. Supp. 552; Lord Howden v. Simpson, 10 Ad. & El. 793. There is no evidence that at the time the plaintiff’s contract was made the board did not have ample funds to erect the building, and there is nothing in the case to show that when he entered into the contract and prepared the plans and specifications, the plaintiff knew or had reason to believe that the board would fail to perform its duty by providing sufficient funds in the manner provided by law for the completion of the building.
We do not agree with the appellant’s contention that under the facts of this case the plaintiff’s agreement became invalid because the board subsequently let the contract to Kreusler for erecting the superstructure for a sum which increased the indebtedness of the district beyond the two per cent, limit fixed by the Constitution. The plaintiff’s agreement when made was valid, and did not become illegal by the subsequent action of the board in letting the Kreusler contract. He was not concerned with the ultimate costs of the building and it did not enter into his contract, except as it fiyed his compensation. He was not required to see that the board subsequently observed the law in contracting with others and did not unlawfully increase the debt limit in letting any or all of its contracts. It cannot be pretended under the evidence in the case that the plaintiff even suspected that the Kreusler contract was invalid; on the contrary, he had the fight to assume and did assume that having
The plaintiff was not compelled to rely on the invalid Kreusler cqntract to recover compensation for his services. It would hardly be pretended that prior to July, 1908, when Kreusler began work under his contract of June 9, 1908, the plaintiff was rendering his services under that agreement. During the prior period he prepared the preliminary sketches, made the plans, drew the specifications, and superintended the construction of the foundation by Barnhart whose contract is not attacked for illegality. There is no reason, legal or moral, that can be invoked under the facts disclosed by the evidence in the case to defeat a recovery for these services. The remainder of his services were rendered in superintending the construction of the superstructure by Kreusler. These services were performed under his own legal contract and not in pursuance of Kreusler’s invalid contract. He was not compelled to and did not put in evidence the Kreusler agreement to support his claim for compensation. The only reference to the Kreusler contract was to establish the amount of work and total cost of the construction up to the time the injunction was issued as a basis for determining the plaintiff’s compensation, and these facts could have been proven without even a reference to the agreement. At the most, therefore, the plaintiff’s agreement was only indirectly connected with the Kreusler contract, and did not require
The assignments of error are overruled and the judgment is affirmed.