White v. Braddock Borough School District

159 Pa. 201 | Pa. | 1893

Per Curiam,

An examination of the record in this case, with reference to the questions presented for our consideration, has failed to convince us that either of the specifications of error should be sustained. Plaintiff’s right to recover depended on questions of fact which appear to have been properly submitted to the jury and found in his favor. The main questions were, whether he substantially performed his contract with defendant within the time and in the manner required by the terms thereof. Was there a failure by him to perform in either of these respects; and, if so, was it due to his own neglect or default, or to the neglect, default or improper interference of its architect? If the jury found there was a failure to perform within the time required, and the delay was chargeable to plaintiff himself, they were instructed, as requested in defendant’s second point, that the measure of damages was the twenty-five dollars per day, specified in the contract. If they found that, notwithstanding an honest effort on his part to perform his contract, he failed to do so in some minor particulars, and the building was accepted by the defendant in that condition, they were instructed to allow such reasonable deductions as would adequately compensate for such deficiencies in workmanship and materials. On this subject, the learned trial judge — in affirming plaintiff’s seventh point — charged thus: “If the jury find, under all the evidence, that the plaintiff made every reasonable effort, in good faith, to perform his contract fully and within the period given, him to perform it, and that the building was completed and taken possession of and used for its intended purpose, and adequately serves said purpose, then the plaintiff is entitled to recover the balance of the contract price, together with the amount admitted to be due for the additional work, less such deductions as will compensate the defendant for any minor imperfections and omissions ; and if the jury also find that such imperfections and omissions and the delay were chargeable to the action of the defendant’s architect, and not to the fault of the plaintiff, then no deduction should be allowed on account of them.” In same connection he further said: “ You must bear in mind, however, as to the element of delay, that it must be chargeable to the action of the architect; if he failed to furnish the lines and levels, or to do any other act which he was required to do under the contract, or if he made such changes in the plans and specifications as to cause delay, the plaintiff would not be answerable for such delajq but if the delay resulted from the condemnation, with reasonable promptness, of material which the architect, under the contract, was required to pass upon, and the necessity of procuring other material, such delay would not be chargeable to the architect.”

These instructions, as further explained and enforced in other portions of the charge, were not only warranted by the testimony but they were full and adequate. The remaining specifications, in which reference is made to that provision of tho contract which requires the lines and levels to be furnished on or before the 16th of July, 1891, do not require discussion. Neither of them is sustained. The case was carefully and accurately tried, and there appears to be no sufficient reason for disturbing the judgment.

Judgment affirmed.