209 Pa. 27 | Pa. | 1904
Opinion by
The contentions in this case arise from the alterations of a dwelling house situate at 254 South Sixteenth street, Philadelphia, and the addition thereto of a two story back building.. The former was done without any special contract for the same and the latter was in part done in pursuance of a written contract dated August 12,1902, and subsequently additional work in the way of partitioning and constructing sixteen small rooms in the second story back building, under two alleged estimates, one not denied and the other disputed. The contract of August 12th provided for the erection of the second story back building in question according to a certain plan and specifications furnished by appellees, and that for the work stipulated to be done appellant was to pay the sum of $5,320. The specifications were for the erection of the back buildings and contained no reference to any subdivisions of the large room upon its second story into a series of small rooms. It provided however
One of the appellees testified that when he submitted the final estimate upon which the contract was made the subdivision of eight rooms was notin the contract, and that the building permit showed only two large rooms on both floors, and that upon October 29, 1902, they made an estimate for the second subdivision of eight rooms for the sum of $275 and that he told appellant that the first eight rooms were not in the contract and that the estimate of $400 was for such first subdivisions of eight rooms. He also testified that they had made an estimate
The proofs thus present clearly an issue of fact, namely whether there was any evidence to show whether the contract of August 12th, was intended to embrace in it any subdivisions and whether appellant made any contract for eight subdivisions besides the eight that she had specifically agreed to pay for. If the pencil marks on the plan or blue print were placed there not as indicating a part of the work to be done under the contract, but only for the temporary purpose of pointing out how subdivisions could be made in case appellant should conclude to make them, the work of subdivision became new work and was no part of the work to be done under the contract and if so and she agreed to have the work done, she became liable therefor. It follows therefore that the question was clearly one of fact for the jury and the learned trial judge substantially left it for their determination.
But is was contended that the appellees were not entitled to recover because the contract provided that no allowance should be made for extra work unless notice be served and the consent in writing be obtained and that no notice and no consent had been given. There is no difficulty about the principle that no work can be allowed for where there has been no compliance
It appears that appellant’s counsel in a letter called appellee’s attention to certain defects to be cured. Accordingly appellees directed a mechanic to cure the defects suggested. Having done so he reported by letter to them and in it stated that the defects referred to were caused by shrinkage and were inevitable and he testified that the defects were trivial and that the work was done in a good and workmanlike manner and that the materials furnished were first class. This was denied on the part of the appellant who called several witnesses who testified that the work was not done in a good and workmanlike manner and that the material furnished was not first class and what it would cost to do the work to suit her. The question was thus one of fact for the jury and the learned trial judge charged: “ There is another matter concerning which a good deal of evidence has been given and which has caused much argument and that is that the defendant claims that the work all over was not done in a workmanlike manner.
The learned trial judge’s remark in regard to matters that were insignificant assuredly cannot be successfully stated to have taken this question from the jury.
The appellees claimed $528 for certain work upon the main building for making certain alterations in it. This work was done upon it and was in no manner connected with any of the contracts for the erection of the back building. The exhibit annexed to appellee’s statement sets forth the various items of labor, etc., amounting to $523, and appellant’s affidavit of defense avers that she was entitled to a deduction in the sum of $71.00 for erroneous charges made in regard to the time employed upon the work and practically thus the sum of $71.00 was involved. Upon the trial one of the appellees with his book of original entiles before him testified that the amount due appellees for work and materials furnished was $523 and the carpenter who had charge of the work kept a small book showing the items of charges for this alteration. He testified that he and appellant went over the account in this book and after devoting two hours to it verified it as to time employed in the work and this book was offered in evidence without objection. The evidence thus clearly establishes the extent of the time employed in the work. In view of this and the other proofs it is not deemed necessary to consider whether or not the books of original entries were competent. Their admission even if erroneous did not work any harm to appellant and therefore would not be a ground for reversal: Wynkoop v. Seal, 64 Pa. 361.
The assignments of error are not sustained and the judgment is affirmed.