Pittsburg Terra-Cotta Lumber Co. v. Sharp

Opinion by

Mr. Justice Dean,

On July 19, 1892, the plaintiff entered into a written contract with defendant to furnish to him for the Metropolo Hotel on Broad street, Philadelphia, then being built, all the fireproofing material, roof block covering and partitions, at the price of #19,500, eighty per cent of the monthly work to be paid monthly; one half the retained twenty per cent to be paid when building was completed, and remaining half within ninety days thereafter. All work to he done under the direction of Angus S. Wade, defendant’s architect, and further, payments to be made on certificate in writing of the architect that the work, upon the performance of which the payment was to become due, had been done to his satisfaction j further, that the contractor was to make no claim for additional work, unless done in pursuance of an order from the architect, and notice of all claims for such work should be made in writing within ten days from the beginning of it. The contractor was to complete his contract within five weeks of the time all metal work was in place, and if in default was to pay #100 per day to the owner as liquidated damages. Plaintiff claimed extra work, #1,271, making with the contract price, its total demand, #20,771, on which payments of #17,550 were credited, leaving a balance unpaid of #3,221, which, with interest from September 9,1898, at which date it averred the contract was completed, was the amount of its claim. The defendant averred that plaintiff had delayed for a period of thirty-five days beyond the five weeks after all the iron work was in place, to complete his contract, which at #100 per day, made #8,500; that instead of #1,271, being due for extra work, it should be only #580.65, that being all that was done on the written order of the architect. This brought plaintiff hi debt to defendant.

When the case came to trial the plaintiff had not the certificate of the architect that the work had been completed to his satisfaction nor, except as to the sum of ¡f>530.'65, admitted as work extra to the contract, had it any written order from the architect for additional work. The burden, then, was on plaintiff to show, by proper evidence, that which would excuse or dispense with the production of these papers, in the face of the express stipulations of the contract. Assuming this burden, (1) plaintiff adduced evidence tending to show that it had done the work in all particulars as called for by the contract; (2) that it had completed it within five weeks of the date that the iron work was in place; (3) that it had made frequent requests to the architect for the final certificate, which he neglected and refused to give, and then followed this by evidence that the architect, in collusion with defendant, wrongfully withheld it; (4) as to the extra work claimed, evidence was adduced that this was done on verbal orders, the contract not requiring they should be in writing, and then, that within ten days as required by the contract formal notice was given in writing to the architect that the work had been done.

It is unnecessary to go over in detail the testimony; it is sufficient to say there was testimony in support of each proposition which, if believed by the jury, warranted the verdict in favor of plaintiff. The learned judge of the court below, in an impartial and perspicuous charge, submitted it to them. The wh.ole grievance of appellant, as set out in his assignments of error, is based on failure of plaintiff to produce the written certificate of the architect that the work was completed to his satisfaction and within the time stipulated in the contract. We fear appellant misapprehends the purpose of this provision; evidently, it was inserted to protect the owner against any unjust or unfounded claim by the contractor, and in that view of it, it was a reasonable provision; but if the contractor honestly performed its covenants, it was not intended to protect the owner from an honest payment of the price by a capricious or fraudulent withholding of the certificate. Nor would the law tolerate such a wresting from its purpose of this provision. As to the date at which the iron work had been put in place, defendant’s own affidavit of defense, in a suit by the contractors for that part of the building, that they had not completed it by September 1, was a positive corroboration of plaintiff’s averment that there was no default on its part as to time. Within five weeks of that date it completed the fireproofing work, and this negatived any claim of defendant for the flOO per day liquidated damages for default as to date of completion. We find nothing of merit in any of the assignments of error, and the judgment is affirmed.