227 Pa. 511 | Pa. | 1910
Opinion by
March 28, 1910:
The estate of Joseph Harrison, Jr., owned certain store properties which were destroyed by fire. Showell & Fryer, Limited, were the tenants, and after the fire they were given another lease for a building to be erected. E. V. Seeler was employed as the architect for the new building. The proper representatives of the Harrison estate entered into a written contract with John R. 'Wiggins & Co., to construct the building according to certain plans and specifications. The floors were to be according to the “slow burning” plan. After the work was commenced the owner decided to change the floors to a patented concrete plan known as “ Columbian Fire Proofing.” This matter was referred to the architect, and he received two letters from the Columbian Fireproofing Company offering to put in the floors, giving specifications and details of construction and naming a price. These letters also tendered a guarantee that the floors would be thoroughly first class in every particular and would carry a live load of 130 lbs.
Both Showell & Fryer and the representatives of the Harrison estate have appealed. The first of the appeals suggests many questions; but the only one which it is important to consider arises out of the complaint that the court below fell into error in assuming jurisdiction of the bill as to the appellants, as they were thereby deprived of their right to trial by jury. The contention on the other side is that all of the matters in dispute were so interlaced that it was practically impossible, or certainly difficult and inconvenient, to dispose of them separately, and on that ground and to avoid a multiplicity of suits, the bill should be sustained. Further, that no demurrer having been filed and the trial having been had, it is now too late to
In the other appeal, the representatives of the Harrison estate assign twenty errors, but the view which we have just indicated in disposing of the first appeal makes it unnecessary to discuss many of these assignments. These appellants contend that the court below fell into error in not finding that the contract between them and. Wiggins & Co. included a guarantee that the floors would have a live weight capacity of 130 pounds to the square foot, and in not holding Wiggins & Co. liable to them for a breach of that guarantee. The trial judge held that there was no guarantee that the floors would bear any particular weight; that the first test was justifiably regarded by the architect as a sufficient one,, and it was in point of fact a more proper test than the second; further, that the final certificate of the architect was in the nature of an award which Wiggins & Co. were entitled to stand upon; and that Wiggins & Co. had fully performed their contract in accordance with its terms. The learned court below was entirely right in its construction of the contract between Wiggins & Co. and the appellants when it said: “I do not consider that the contractors guaranteed that the floors would bear any particular weight, or that they undertook to do anything else than to construct those floods according to the particular system, as specified, subject to the approval of the architect and the building inspectors.” As to this the appellants contend that the letter from the architect, to Wiggins & Co. wherein it is stated, “said sum to cover five floors in accordance with the accompanying letters of the Columbian Fireproofing Company under date of May 7th and June 7th,” in view of the letters referred to, which read, “We
We have carefully examined all of the evidence bearing on the question of the tests, and we cannot say that the trial judge was wrong in his conclusion that the architect was justified in treating the first test as a proper and sufficient one. In the language of the court below, the architect’s “ decision was based upon evidence in regard to the strength of the floors that he deemed sufficient and convincing. The building inspectors made no objection to the work, and by their allowing the building to be occupied, they may be regarded as satisfied with it.”
The contract for the original erection is dated May 22, 1902, and provides: “The owner, subject to the approval of the architect, may make alterations, which shall be acceded to by .the contractor, without in any way violating or vitiating the
As well stated by the learned court below, the losses in this case “have occurred by an unusual combination of circumstances exhibiting not negligence or misconduct so much as ignorance and timidity in connection with the use of structural devices that were not fully understood and trusted.” Be this as it may, the appellants omitted to exact any guarantee of a particular weight capacity, and the floors were constructed in accordance with the plans and specifications dictated by them; if the floors failed to come up to their expectations and to meet the needs of the building, the contractors are not to be blamed: Filbert v. Phila., 181 Pa. 530; Harlow v. Homestead, 194 Pa. 57. But the appellants say, if the estate has no recourse against the builders, it should be allowed to recover its losses against the architect. The trial judge has found that the architect was in no way responsible for the substitution of the Columbian flooring; that he was warranted in believing that the building was intended for use only as a retail grocery store, and not as a warehouse; that the test of the floor was reasonable and made in good faith, and its result was not such as to justify a rejection or impose upon the architect the duty of making another test before final acceptance; that he had fully performed all of the obligations of his employment and was guilty of no negligence in the discharge of his professional duty or in giving the final certificate and making the final payment to Wiggins & Co. The architect was no more responsible
None of the parties defendant excepting Showell & Fryer has raised any question as to the jurisdiction of the court. On the questions between the plaintiffs and the other defendants, a careful reading of the testimony and a consideration of all the documentary proofs fail to show any manifest error in the findings of the trial judge, or in the conclusions of law based thereon.
The seventh assignment of error in the first appeal, to the effect “That the bill should be dismissed as to Showell & Fryer, because of want of equitable jurisdiction over them” is sustained, and they are discharged with their costs; without prejudice to the right of the proper representatives of the Harrison estate to proceed with their action at law against these appellants.
In the appeal of the representatives of the Harrison estate we do not pass upon the assignments of error going to the questions between them and Showell & Fryer. The other assignments are overruled in accordance with the views which we have expressed in this opinion.
The final decree of the court below is affirmed with the modification that the third paragraph adjusting the accounts between the Harrison estate and Showell & Fryer is stricken therefrom. The costs of the defendants Showell & Fryer are to be paid by the plaintiffs, John R. Wiggins & Co. The costs of the plaintiffs, John R. Wiggins & Co., and the costs of this appeal, other than those incurred by Showell & Fryer, are to be paid by the defendants the. representatives of the Harrison estate named upon the record.