Moore v. Carter , 146 Pa. 492 ( 1892 )

Opinion,

Mr. Chief Justice Paxson:

The second and third specifications of error may be considered together, as they involve the same principle. The contract in evidence required releases from all contractors furnishing materials, to be produced at the time of the completion of the building, and before the payment under the contract was to be made. At the time the claim was filed and the scire facias issued, there were upon the records certain liens filed by material-men, and it was claimed by the defendants that no right of action accrued until these liens had been satisfied. Upon the trial below, the plaintiff offered a release of these liens in evidence, and they were admitted under exception by the defendants. We think the releases were property admitted. Although payment under the contract could not be compelled, there was nothing in its terms to deprive the plaintiff of the security of his lien under the act of assembly. He had a right to file his claim, therefore, and we see no reason why he might not proceed by scire facias to liquidate the amount due thereon. It is true, the court below would restrain an execution under such circumstances, until the liens were paid and satisfied. This is the proper practice.

The fourth, fifth, and sixth specifications refer to the admission of certain evidence in regard to extra work. The plaintiff contended that the provision of the contract in relation to extras was waived by the defendants, and offered evidence which strongly supported this theory. It is true, it was contradicted by the defendants, but this was for the jury, and we see no error in the admission of the evidence referred to. These specifications are not sustained. For the same reason, it was not error to refuse the defendants’ sixth point. Under the evidence the question of a waiver of the contract could not be withdrawn from the jury.

The eighth specification alleges that the court erred in affirming the plaintiff’s third point. It is as follows: “ That if the plaintiff acted honestly, and in good faith substantially performed the contract, that was sufficient.” This point was affirmed without qualification. Nor does any sufficient qualification appear elsewhere in the charge. It is true, we have numerous cases which decide that a substantial compliance is sufficient to entitle a party to recover. But to recover what? Not the full contract price, but such price, less deductions for any minor matters left uncompleted. The point was perhaps affirmed upon the authority of Sticker v. Overpeck, 127 Pa. 446, where it was held “ that if the plaintiff acted honestly, and in good faith substantially performed the contract, that was sufficient; and if in minor points the contract was not complied with, the jury might deduct from plaintiff’s damages the difference between the value of the work as it was turned over to the defendants, and what it would cost to have it completed in strict conformity to the contract.” It will be noticed that the plaintiff embodied the first two lines of this ruling in his point, and omitted the rest or the qualifying portion. Had he included the whole, his point might have been affirmed. The effect of the affirmance was to instruct the jury that they might find a verdict for the full contract price, if they believed plaintiff had substantially performed his contract. It is true, the court instructed the jury in the general charge that they might make a deduction for defective work, etc. But there was no instruction that for minor matters wholly omitted, they might and should make a deduction.

Complaint is made in the ninth specification that the court erred in instructing the jury in answer to the plaintiff’s seventh point, “ That if the jury believe that changes in the original contract were plain and palpable to the defendants, the silence of defendants is some presumptive evidence of a previous mutual consent.” The plaintiff attempted to sustain this ruling by quoting an extract from the opinion of this court in Bryant v. Stilwell, 24 Pa. 314. The sentence quoted is as follows: “ The owner’s silence affords some presumptive evidence of a previous mutual consent to vary the terms of the original agreement, where such variance, made in his presence, is so plain and palpable that he must have seen and understood its effect.” The plaintiff gives this as a quotation. It is not accurately quoted, but the substance is correct. It will be seen that it differs from the language used in the point. In Bryant v. Stilwell, the court says: “But if a plain and palpable variance from the plan agreed upon be made in presence of the owner, in such manner that he must have seen it, and understood its effect,” etc. The variance between the point and our ruling is not only plain, but it is essential. The point merely says, if the alterations were plain and palpable, etc. They might have been so, and yet not have been seen by the owner. Nor is there a word about their having been made in the presence of the owner. An alteration that is plain and palpable may not have been seen or noticed. That the distinction is material is obvious from the following extract from the opinion of Mr. Justice Black, in the case referred to:

“ There are cases in which the consent of the owner will be implied from the fact that he was present when the alterations were made, and did not object. But that inference ought to be cautiously drawn. The most serious defects may not be observable, even by the sharpest eye, until the work is finished. A variance from the plan, appai’ently unimportant at first, may have an effect upon the building as a whole job, which none but an experienced carpenter would be able to anticipate. A person who gets a house put up under an entire contract is not bound to understand the business. He confides in the skill, as well as the honesty of the man he employs......For these reasons, the general rule is that if the contractor slights or bungles his work, he cannot justify himself merely by showing that the owner was present when he was wronged, and made no objection. ”

This specification is sustained.

We do not think it was error to refuse the defendants’ tenth point. See tenth specification. The question whether the plaintiff was entitled to be paid for rebuilding the front wall,, was for the jury under the evidence. Nor do we find .error in those portions of the charge embraced in the eleventh and twelfth specifications. There appears to have been a conflict of evidence in respect to the willingness of the. parties to submit the value of the extra work to arbitrators. This was left to the jury. As only a small part of the testimony is printed, we cannot pass upon this matter.

Judgment reversed, and a venire facias de novo awarded.