Harrison v. Reeves

Opinion by

Mr. Justice Gbeen,

We think the learned court below was in error in giving a binding instruction to the jury to find for the plaintiffs the designated sum of $645. The amount, if any, to which the plaintiffs were entitled was a disputed question of fact which could only be decided by the jury. There was conflicting testimony on that subject, the defendants claiming that the plaintiffs had been paid in full and were entitled to nothing. The credibility of the witnesses, the several payments made on account, the question whether the plaintiffs had furnished fireplace fronts and hearths at $40.00 each and grates, or backs and jambs at $40.00 each, or others in their place at a lower price selected by Mrs. Sinnickson in conformity with a right of such selection on her part under the original contract, were all matters for the consideration of the jury. The question whether Mrs. Sinnickson had a right to select fronts and hearths, and grates, or backs and jambs, at a lower price than $40.00 each,, and to have the contract price abated by the difference in price, was a question of the construction of the contract and therefore for the court. But that question is not presented in the charge nor in any points submitted on either side. We are very clear however that she did have the right to make such selection, and if she did so select, she was entitled to have credit on the contract price for the difference in the price as against the original contractors, and that they had the right to a similar credit against the plaintiffs who contracted with them for this part of the work. The privilege of selecting these articles at a lower price than $40.00 each would be meaningless, if she was to receive no benefit from such selection.

It is somewhat doubtful whether the plaintiffs would be conclusively bound by the arbitration of the architect. We have not the whole contract between the owner and the defendants before us, and do not know whether a knowledge of its entire contents would affect the question or not. But the letter of the plaintiffs to the defendants dated July 11, 1890, distinctly proposed to supply the work and materials in question according to the plans and specifications of the architect, and the subsequent correspondence between the plaintiffs and the architect indicates that all the plaintiff’s work was furnished under and in accordance with the plans and specifications of the architect, and subject to his immediate supervision and control. Moreover the plaintiff’s letter and proposal to the architect, dated May 6, 1891, contains a distinct memorandum of the selection by Mrs. Sinnickson of the articles in question at much reduced prices, recognized and acknowledged by the plaintiffs, and, as we understand, an agreement to place them all in at the prices named, amounting to $597 instead of $1,040, which would be the original contract price at $40.00 each. We are at a loss to discover upon what principle the plaintiffs can claim to-recover $1,040 for work which they apparently agreed in writing to do for $597. The idea that the owner, if she selected, articles costing less than $1,040 was nevertheless bound to pay that price because the expression in the contract giving her the-right of selection was “ within the above figures,” is altogether-untenable. We cannot sanction it in any point of view.

Now while the determination of such a question as this was-probably not within the function of the architect acting as arbitrator, we incline to think that the defendants’ offer to prove the reference to, and action by the arbitrator should have been received, leaving the consideration of its effect for the subsequent action of the court upon all the testimony. It probably would have but little effect on the cause, because the contention between the parties seems to turn upon the question whether the plaintiffs are entitled to charge the defendants $1,040 for the fireplace fronts and grates, or backs and jambs, or $597, and on that subject we think, as we are at present advised, that they can only charge the lower sum.

The plaintiff, Charles H. Harrison, being on the witness stand, admitted that he had seen and read the original specifications, and he read from them on the stand the portion relating to this subject. It is as follows: “ The new tiles for fireplace fronts and hearths to be estimated at $40.00 each, each fireplace set complete, and the grates or backs and jambs are to be included also in this proposal at $40.00 each. The owner is to have the privilege of selecting all these articles within the above figures.” It will be.observed that the figure $40.00 each was only an estimated figure, and was subject to the owner’s right to select all the articles “ within the above figures,” that is, at lower figures. The witness also admitted that the owner had the right of selection within the figures, that she had made such selection, and that the fireplaces, backs and jambs which she so selected he had put in. His own proposition of May 6, 1891, to put these in at a cost of $597, was followed by a letter from the architect, dated May 9, 1891, directing the plaintiffs to put them in at that price, and to do it as a part of the plaintiffs’ contract with Stacy Reeves & Sons, reporting the same to them. As we understand, all this was done, and it certainly would be a matter for the jury to decide whether the work was put in at the price thus proposed and accepted or not.

The assignments of error are all sustained.

Judgment reversed and new venire awarded.