Gillison v. Wanamaker

Opinion,

Mr. Justice Clark:

Upon a careful examination of the plaintiffs’ statement of claim and the affidavit of defence filed, we are of opinion that the latter was sufficient to send the case to a jury. The contract provided for the erection and completion of certain alterations and additions to the defendant’s dwelling, corner of Eighteenth and Spruce, in the city of Philadelphia, under the direction of Theodore P. Chandler, an architect, according to certain plans and specifications which were made part and parcel of the contract.

The second clause of the contract provided as follows: “ It shall be lawful for the said party of the first part at all times to direct in writing any additions to or deviations from the plans and specifications aforesaid, without in any other respect or particular varying this agreement or impairing the force thereof; and in case of any such addition or deviation, so directed in writing, such further time shall be allowed for the completion of said work as said architect shall decide to be reasonable; and such sums of money shall be added to or subtracted from the amount of the consideration hereinafter agreed to be paid, as the said architect shall judge the increase or diminution in the amount of the work and materials thereby occasioned to be fairly worth; and it is expressly agreed that no alterations or additions are to be paid for unless so directed in writing.”

The contract further provides that “ no work shall be considered as extra, unless a separate estimate in writing for the same shall have been submitted by the contractor to the architect or the owner, and his signature obtained thereto; ” and that, “if any question should arise, during the progress of the work, respecting the true construction or meaning of the specifications, or in settlement of accounts, it is to be referred to the said architect, whose decision shall be binding upon both parties.”

From the plaintiffs’ statement it now appears that extra work to the amount of $244.83 was done. The defendant admits that the oak ceiling in the hall was added by his direction, and that he agreed to pay $150 for that portion of the extra work; but he alleges that the balance of the extra work charged was not done by his direction, or by the direction of any one authorized by him, in the mode specified in the contract or otherwise ; that he was absent from the city when this portion of the work was done, and it was done without his knowledge, or the knowledge of any one acting under his direction, and in violation of the second clause of the contract.

The architect, as the arbiter, was bound by the terms of the submission; he was, in this capacity, the agent of both parties. He had the power, in the manner agreed upon, to authorize the performance of extra work; but, if neither he nor the defendant himself authorized it, the architect could not after-wards impose an obligation upon the defendant when none previously existed under the contract. The defendant had a right to rely upon the terms of the agreement, and the powers of the architect were conferred and restricted in this instrument.

It was averred in the statement that “ after the said work was done it was examined by the said architect, and approved by him; and his certificate of approval of plaintiffs’ bill, showing a balance of $698.08 due by the defendant to the plaintiffs, was shown defendant, and demand made for payment thereof.” It is not alleged that any separate estimate of the extra work, in writing, was submitted to the architect or the owner, and his signature obtained thereto.

The work was to be completed on the 1st day of September, 1888, and it was provided that, should the contractor fail to finish on or before that date, he should pay the party of the first part “ the sum of five dollars per diem for each and every day thereafter the said work shall remain unfinished, as and for liquidated damages.” The statement admits that the work was not finished until the first day of November, 1888, and it does not state that, owing to the additional or extra work, any allowance was asked for, or was in fact allowed by the architect, or that any question arose upon that subject for the decision of the architect, or that the architect in fact passed upon any such question; it simply sets forth that the plaintiffs’ bill for the balance of the work was examined by the architect, and approved by him. The certificate is not before us. We only know from what is set forth in the plaintiffs’ statement what it contains; and we have no right to infer a fact which it was the plaintiffs’ duty to disclose.

As to the two shovels, we can only say that, unless they are to be excluded upon the principle de minimis, etc., the defendant would seem to be entitled to a credit for what they were worth. Of course we rule this case upon the effect of the statement and the affidavit; when the cause comes to trial and the facts are fully developed, a different case may be presented.

The judgment is reversed, and a procedendo awarded.