Asbestos Manufacturing Co. v. Burns , 1903 Pa. Super. LEXIS 307 ( 1903 )

Opinion by

Smith, J.,

The plaintiff, a subcontractor, having failed, in part, to perform the contract, the defendant, the principal contractor, proceeded to complete it. The plaintiff now seeks to recover the difference between the contract price and the cost of the completion by the defendant. The claim is resisted on the ground that since the contract was entire there can be no recovery for part performance.

The parties, however, have made for themselves a different rule in the premises. In their contract, instead of leaving the penalty of default to rest on the law, they agreed on a provision by which it was otherwise fixed. This contract, as found by the referee, provides that in case of default the board of inspectors may, after due notice, “ proceed to employ necessary workmen, overseers and laborers, and purchase such materials as may in the judgment of the consulting engineers be necessary to complete the work within the specified time, at such wages as they may find it necessary or expedient to give, pay all indebtedness so incurred, and charge over the amount so paid to the contractor as if for work performed by him.”

The plaintiff’s performance of the contract, so far as proceeded with, being unsatisfactory to the board of inspectors, the defendant addressed a communication to the plaintiff, stating this dissatisfaction, and concluding as follows: “ This is the third notice I have served on you, and am invested with the power, according to my agreement with you as per specification for said prison, to have this work finished up immediately by another contractor. The cost of the said work to be deducted from your contract.” The defendant then, through another subcontractor, finished the work. The plaintiff neither attempted further performance nor objected to the course pursued by the defendant.

Whether, by the true construction of the contract, the defendant was authorized to proceed in this manner, had the plaintiff contested his right to do so, is not material. The right was asserted by the defendant and recognized by the plaintiff, the parties thus agreeing on the construction of the contract. The preliminaries and notice contemplated by the contract were obviously for the benefit of the plaintiff, and might be waived. Acquiescence in the defendant’s action must be deemed a waiver of all that might have been demanded before the work was taken out of the plaintiff’s hands. As matter of fact, the defendant, with the co-operation of the prison superintendent, who excluded the plaintiff’s workmen from the grounds, practically prevented the plaintiff from continuing the work. Having for this purpose assumed the right, under the contract, of placing its completion in the hands of another, he cannot now be heard to allege that he had no authority to do so. His notice to the plaintiff announced his purpose of doing this; also that, as provided by the contract, “ the cost of the said work to be deducted from your contract; ” and to this the plaintiff practically assented. This was an exercise of authority, and an application of the penalty for default, substantially in accordance with the contract. It left the plaintiff entitled to the difference between the contract price and the cost to the defendant of completing the work with interest from the time of completion.

Judgment reversed, and it is ordered that judgment be entered in the court below in conformity with this opinion.