Ellis v. Lane , 1877 Pa. LEXIS 246 ( 1877 )

Mr. Justice Sterrett

delivered the opinion of the court, November 9th 1877.

This was an action of covenant on an article of agreement executed by the parties on the 18th of August 1873, whereby the defendants undertook, for the consideration therein named, to “ construct and erect a saw-mill on the site of the mill burned; said mill to be of the same length, breadth and general dimensions, and to be furnished with machinery in all respects similar to that in the mill so burned, so that the said mill, to be so erected, shall be in all respects as good as the said mill was at the time it was destroyed; * * * and all machinery to be fit and suitable for its intended purposes and capable of doing as much work as that in the mill destroyed,” &c.

We have not been furnished with the declaration, and are therefore not fully informed as to what breaches were assigned. The pleas wrere non est factum, covenants performed, absque hoc, with leave, &c.

By writing filed the parties agreed to dispense with trial by jury and submit the decision of the case to the court. The Act of April 22d 1874, under which the submission was made, provides that the decision of the court shall be in writing, stating separately and distinctly the facts found; the answers to any points submitted in writing by counsel, and the conclusions of law. It is of the utmost importance that these plain and explicit requirements of the law should be strictly complied with. In the first place the facts found by the court, so far as they are material to a just decision of the cause, should be separately and distinctly stated, with at least as much precision and particularity as are required in a special verdict; and, after answering the points, if any are submitted, the' conclusions of law, applicable to the facts, should be clearly stated.

It is claimed, in the first assignment,that “the court erred in not stating separately and distinctly the facts found.” If this were so it would of course be good ground for reversal; but it is not sufficiently clear that the provisions of the act, in this respect, have not been substantially complied with. In overruling the exceptions filed in the court below, the learned judge says that he indicated in his opinion, with sufficient certainty, all that was necessary. While the decision of the court does not strictly conform to the requirements of the act, we are unable to say from the record before us, that any material fact was omitted or improperly stated.

Considering the provisions of the contract, in relation to the kind and description of the mill that was to be erected, and viewing them in the light of the evidence before the court below, we are unable to say that any error was committed in construing the clause quoted in the 2d assignment of error. This clause is qualified to some extent by the words which immediately follow in the same sentence, viz. “ so that the said mill, to be so erected, shall be in all respects as good as the mill so burnedand, as part of the facts in the case, the learned judge found that nearly if not all the machinery, for want of which the plaintiff claimed damages, had gone out of use or been laid aside; that its presence, in or about the mill, at the time it was burned, as a then available element in manufacturing lumber, did not enter into the minds of the contracting parties, and that the contract was made with reference to the mill as it actually was at the time of the fire, not what it had previously been. He further found that the contract had been substantially performed by the defendants, and that the greater part of the -work was fairly done; but, for defects in the frame work, roof, &c., he deducted five hundred dollars from the price agreed upon by the parties. This finding, with the exception of the fact of substantial performance, is not assigned for error, and if it were, we would not be justified in reversing unless it was shown to be manifestly wrong.

As to the third and fourth assignments ; it is true the contract provides for the manner in which the defendants were to be paid, and the source whence the funds were to come; but this provision of the contract was so modified by the agreement of June 22d 1874, as not to preclude them from setting up and maintaining, in this action, their claim for building the mill. By this latter agreement §5000 remained in the hands of A. W. Minor to await the result of this suit; and it was agreed, in case it was determined that the defendants were entitled to the whole or any part of the money, that they were to be paid, and the residue, if any, was to be handed over to Ellis, the plaintiff.

The plaintiff’s points, referred to in the 5th, 6th and 7th assignments, were irrelevant, and there W'as therefore no error in declining to answer them. The 8th assignment is not sustained. We are unable to see that there was any error in finding that the defendants had substantially performed their part of the contract.

On the whole, we are satisfied that substantial justice was done between the parties, and the judgment should therefore be affirmed.

Judgment affirmed.