30 Pa. Super. 265 | Pa. Super. Ct. | 1906
Opinion by
The contract between the defendants and Solomon Hirsch, the rejection of which is the subject of the first assignment of error, could only have been properly admitted when it was made to appear that the plaintiff’s contract was dependent upon the performance by Hirsch of his undertaking. It is not shown in any part of the evidence, however, that the plaintiff and defendants entered into their engagement with any reservation on account of the contingency of Hirsch’s failure so to do. The transaction between the plaintiff and defendants was the tender-, by the latter, of a contract for the erection of a building, according to plans and specifications adopted by them, a bid by the plaintiff for the construction of the building, in accordance with the plans and specifications, an acceptance of this bid by the defendants, and an award of the contract to the plaintiff. The obligations of the plaintiff and defendants, thus created, were absolute and had no connection with the collateral agreement between the defendants and Hirsch. The agreement with the plaintiff was, no doubt, entered into by the defendants in anticipation of the investment, by Hirsch, of the amount of money called for in his contract, and their action in undertaking the project, was evidently instigated by their faith in Hirsch’s ability to perform. If their overconfidence led them to the creation of a personal obligation, binding on them, without regard to their claim on Hirsch, the plaintiff is in no way to blame for their present predicament. If they desired to make the construction of the building dependent upon the receipt of
The second and fourth assignments challenge the accuracy of the conclusions of the trial judge on questions of fact. That there was evidence tending to show the execution of the contract and the breach by the defendants, is manifest. There was a foundation, therefore, for the findings complained of. Evidence was offered, which pointed directly toward the result arrived at. This evidence was competent and relevant, and the inferences drawn therefrom, are reasonable. Such being the case, we can not go into an examination of the credibility of the witnesses and the contradictions in their testimony. That was the duty of the judge who sat both as court and jury, in the trial of the cause. The rule as to the findings of fact of the court or a referee, is the same: Eichman v. Hersker, 170 Pa. 402. It has been declared in a number of cases, that findings of fact, by the court, are no more reviewable on appeal than is the verdict of the jury, and an appellate court will only look beyond the findings of fact when the assignment of error is such as could be heard if the trial had been before a jury, according to the course of the common law: Bradlee v. Whitney, 108 Pa. 362; Southern Maryland R. R. Co. v. Moyer, 125 Pa. 506; Eichman v. Hersker, 170 Pa. 402; Fleer v. Reagan, 24 Fa. Superior Ct. 170.
The appellants attach importance to the fact that the contract was to be reduced to writing and a bond tendered, accompanying it, and contend that until the contract in writing was signed by the parties, no obligation existed. If it anywhere appeared in the case that the preparation of a written agreement and its execution by the parties was made a condition
The only remaining question relates to the. measure of damages. That the plaintiff is entitled to recover the amount ex
The judgment is affirmed.