271 Pa. 245 | Pa. | 1921
Opinion by
Defendant contracted to fill plaintiff’s lot of ground in Philadelphia, but failed to do so. The land was filled by another, and plaintiff recovered the difference between cost and contract price. The real issue in the court below was the existence of a contemporaneous oral
Viewing the case as now presented, however, the evidence was sufficient to show payment and cost. Defendant objected when Harris, superintendent of the dredging company that did the work, was asked “What was the actual cost of making that fill as you made it?” and further objected to a detailed statement showing how the work was done. The best that could be offered, where the land was filled in connection with other land, was to show the average price and that it was a reasonable price. But there is sufficient from the testimony to infer the average price (18 cents per yard) was the price paid by plaintiff. It was plaintiff’s duty, when defendant failed in its contract, to mitigate the damages by such reasonable acts as would avoid financial loss to all parties. This land, along with other land, was filled by the American Dredging Company. Had it been the only land filled, it would have cost much more. The average cost was, then, less than the reasonable cost. Appellant surely cannot complain if the result of this combination was to reduce the cost of filling the lot. While defendant insisted on knowing the actual cost, it objected when the witness wanted to tell the “whole story.” If the actual price was less than the average price, of course defendant should have the benefit of this reduction, but as plaintiff submitted the average price as the cost price charged by the dredging company, defendant, by one question, could have clarified the matter to the satisfaction of counsel who now take this appeal. While there is evi
The evidence of Harris was clearly admissible, as was that of McCleman; Gildersleeve’s evidence was properly excluded. As a general rule, damages are to be ascertained at the time of the breach. As the lot was not filled at that time, Gildersleeve was asked, “What would have been a fair price for filling the lot to the established city grade about the end of May or the first of June, 1918?” That was objected to by defendant. The next question asked, “What was the actual cost of making that fill as you made it?” and this also was objected to.
We do not touch upon several very interesting propositions of law presented. Plaintiff claims that, admitting but not conceding he gave the ground merely as wasting ground, without charge, and the lot was filled after defendant breached his contract without cost, the latter is not entitled to the fruits of this arrangement, but should be held to pay what it would reasonably cost to fill the land at the time of the breach, less contract price; it is just as earnestly urged by appellant it is
Tbe judgment of tbe court below is affirmed.