Koch v. Kuhns

Opinion by

Porter, J.,

The contract between the parties in this cause was in writing and required the defendant “ to do all the stone masomy required for the new Methodist Episcopal Church and Sunday School buildings, to be erected on North Fifth street ” in the city of Reading. After setting forth the rate per perch, the contract provides, “ all the work to be measured according to rule of mason’s workmanship.

“ All to be done in the best, most substantial and workmanlike manner to the satisfaction of Thomas P. Lonsdale, the supervising architect, as described and set forth in the plans and specifications as furnished by said architect.” The plaintiff was required by the contract to pay the defendant “ the before named sums per perch for each and every perch so laid as measured by said architect, at such times and in such amounts as the said architect shall certify to be rightly due said party of the first part upon his application and statement of work done.”

As the work progressed, payments were made to the mason without the architect’s certificate, upon an account kept by the defendant based upon measurements made when the work was in progress. The architect seems to have made no measurements until the work was practically completed, and then issued a certificate for the whole of the work done. When the certificate was issued the plaintiff had already paid the defendant in full for mason work the sum of $6,357.07. The architect’s measurements and calculations showed that the plaintiff had overpaid the defendant the sum of $905.88. For this the plaintiff sued.

The difference between the measurement of the architect and that of the defendant is claimed to be, at least in part, due to the difference in the method of measuring the work done.

The learned trial judge of the court below seems, in this connection, to have fallen into error. Under the terms of the contz-act the architect may have been the arbiter as to the character azxl quality of the work done, but his zneasurements were to be made according tó a certain rule. Nowhere in the contract is found a specific stipulation that the azuhitect is to have the power to determine the measurement arbitrarily.

“ In order to oust the juzisdiction of the courts it must clearly appear that the subject-matter of the controversy was within the prospective submission. The right of trial by jury is not to be taken away by implication: ” Drhew v. Altoona, 121 Pa. 401, 420.

The court below was apparently of opinion that the architect’s measurements were binding unless shown to have been based on palpable mistake or fraud; whereas, where the contract contemplated a measurement by a particular rule, he should have shown his knowledge of the rule and his application of it to the particular case. His testimony is not satisfactory on this point, and indicates his own opinion to have been that the rule was subject to his power to vary it in the particular case. True, he says that he measured by what he knew to be the mason’s rule, and says that he measured the whole surface of the Avail and gave it to the mason, but his cross-examination runs in part as íoIIoavs : “ Q. There are a number of openings there, iioav you included them all. Under the mason’s rule of measurement those openings are included? A. Not by my mason’s rule as I understand it, no sir. Q. There is a general rule adopted in the measuring of mason’s work, is there not? A. No sir. Q. There is not? A. No sir. Q. The contract calls for the mason’s rule of measurement? A. Yes sir, but measured by me. Q. That is a uniform rule of measurement, is it not ? A. No sir. Q. Did you adopt a different mason’s rule ? A. I had to do it. I Avas the arbiter and had to do it in my way. I couldn’t do it in any other party’s way or I would have had to learn their method. The contract required me to do it.” And again he says: “ Q. But now the mason’s rule of measurement in a general way is uniform in all parts of the state as to the work measured? A. No sir, I couldn’t say that.” ' And again: “ Q. Now you have also said and given us an illustration that the mason’s rule of measurement may differ in different localities ? A. No sir, you asked me if I was to do it in a specific way and I said I was, and the mason’s measurement set out for me to do is my way. I was fixed in the contract to do the work in a specific way, otherwise I had to learn some other Avay of measuring. I only know my rule of mason’s measurement.” And again’: “Q. Did you at any time make any effort to apply the rules of mason’s measurement? A. I just explained I did the work by what I understood to be the rules of mason’s measurement.”

From this it will be seen that there was doubt cast on the proposition that the measurements had in fact been made according to the rule of mason’s measurement as required by the contract. Under these circumstances, the offers of the defendant to prove by competent witnesses that the measurements certified by the architeot were not in accordance with the rule aforesaid, and that the architect had failed to apply the rule, ought to have been admitted.

The fact that the offer of proof was on the basis of measurements made a considerable time after the construction was completed, does not furnish a ground to reject the evidence. From the evidence it appeared that the mason work in large part was still visible and that the architect’s own figures were accepted as to the parts of the masonry not visible.

We think the offers of proof set forth in the 4th, 5th and 6th assignments of error should not have been rejected, and these assignments are therefore sustained.

The first assignment is also sustained, as the part of the charge complained of is in conflict with the views herein expressed. The remaining assignments are not sustained.

The judgment is reversed and a venire facias de novo awarded.