258 Pa. 414 | Pa. | 1917
Opinion by
Defendants appeal from a decree directing the surrender to plaintiff of certain collateral held as security for money advanced him, upon payment of suéh advance less the damages suffered by plaintiff because of the refusal of defendant company to carry out its agreement.
Plaintiff, a builder by occupation, desiring to erect dwelling houses in the City of Philadelphia, applied to defendant, the Mutual Trust Company, for a loan of sufficient funds to1 purchase the property and erect the buildings, stating he would need $40.000. At the time plaintiff was indebted to the trust company for an unpaid balance on a previous building operation the latter had financed amounting on December 28, 1914, includ
The principal dispute between the parties was whether defendant company Should advance the sum of $40,000 in addition to the amount already owed by plaintiff to defendant company, or whether, as contended by defendant, the company should merely make additional loans to an extent sufficient to bring the total indebtedness to an amount not exceeding $40,000. On December 24, 1914, an arrangement for the loan was verbally made whereby plaintiff was to purchase the ground in question and execute two mortgages upon the property of $48,000 each, in favor of the trust company, to be held by it, with other securities, amounting in all to the face value of $149,650, as collateral for advancements made from time to time as needed in the building operation, the trust company to receive six per cent, interest and
Although the testimony is conflicting, a consideration of the writing, together with the oral testimony offered as to what was said and done before the execution of the yriting, fully supports the conclusion of the court be
We cannot approve defendants contention that plaintiff, by accepting $1,960, with knowledge that the trust company denied liability for further advances, is es-topped from making demand under his contract. Upon plaintiff’s application for $3,000 he was informed no more than $1,960 would be advanced, as this sum brought the total indebtedness to $40,000; while the amount of the lesser note was accepted, within a week thereafter plaintiff consulted his attorney who wrote defendant company asking an explanation of its refusal to advance the additional money. We find no evidence that plaintiff agreed'.to accept $1,960 and waive further claim under his contract, nor did his failure to protest at the time, under the circumstances of the case, estop him from subsequently demanding further payments in accordance with his understanding of his contract. An essential element of estoppel is that the party seeking to rely upon the doctrine must have been misled to his injury by reason of either the action or silence of the other: Sensinger v. Boyer, 153 Pa. 628. This element is entirely lacking here. Defendant company paid only what it conceded to be due, and certainly was not prejudiced by
Defendants further complain of the measure of damages adopted by the court below. The claim made by plaintiff for loss of profits on the operation from a sale of the houses was rejected, and damages were allowed in the sum of $9,149.50, the amount plaintiff paid out on account of construction work, which on abandonment of the operation, the court found to be a total loss. A portion of this loss included materials purchased but unused, and the court found as a fact that at the time work on the buildings ceased materials were on the ground intended for use in the houses of a value between $1,500 and $2,000, for which amount defendants claim they should be allowed credit. Plaintiff accounts for the loss of these materials by saying they remained on the premises after the work ceased and were carried away by "thieves of the' neighborhood.” An excuse of this character is entirely insufficient to impose upon defendant a liability for loss resulting under such circumstances. The measure of damage for breach of contract must be a proximate, and not a remote, result of the breach,—one the defaulting party was bound to foresee would result as a probable consequence: Adams Express Co. v. Egbert, 36 Pa. 360; That materials placed upon the premises would be stolen is not such a natural result as should be expected. Plaintiff was bound to properly guard the premises and protect unused materials from loss or destruction, and to that end exercise the same decree of care and caution usually employed on the part of contractors during the performance of similar work.
The decree of the court below is modified by deducting, from the damages allowed plaintiff, the amount of $2,000 the sum representing the value of the building materials on the ground at the time the work ceased, thus fixing the amount at $7,149.50. In computing interest it should be calculated on the various sums advanced by defendant as represented by notes amounting to $20,000 to April 3,1915, at which time the damages in the sum above named should be deducted and defendant allowed interest on the balance to the time of final payment. As thus modified the judgment is affirmed.