DocketNumber: Appeal, No. 7
Citation Numbers: 41 Pa. Super. 312, 1909 Pa. Super. LEXIS 60
Judges: Beaver, Hcnderson, Head, Henderson, Morrison, Orlady, Portee, Rice
Filed Date: 12/13/1909
Status: Precedential
Modified Date: 11/13/2024
Opinion by
The defendant resisted the claim of the plaintiffs on the ground that the work and material were not in accordance with the plans and specifications according to which the work was undertaken. The plaintiffs denied a departure from the
The question before us is whether the evidence presents such a case as required the court to enter judgment for the defendant non obstante veredicto after a finding by the jury that the plaintiffs acted in good faith and that the variations in the contract were not important. The evidence shows that the defendant was present nearly every day during the progress of the work; that he was himself a practical builder, and the testimony introduced by the plaintiffs is to the effect that at the completion of the work the defendant was satisfied therewith. It is not pretended that the work was not so far perfected as to answer the purpose intended nor that the
The rule as to strict performance has been relaxed in Pennsylvania, and the doctrine of our cases is and for a long time has been that departures from a contract in the substitution of one thing for another, if done with proper motives and in unimportant matters will not preclude the plaintiffs from recovering for substantial performance. Where such performance has been honestly rendered by one who has furnished material and labor which are used by the other party to the contract, he will not be held to a technical performance and denied any compensation, but will be allowed to recover the amount of the contract after deducting therefrom a sufficient sum to fully compensate the defendant for the loss he sustained by the failure of the plaintiffs to give strict performance: Danville Bridge Co. v. Pomroy, 15 Pa. 151; Albert v. Frick, 1 Penny. 132; Gallagher v. Sharpless, 134 Pa. 134; Holmes v. Oil Co., 138 Pa. 546; Filbert v. Philadelphia., 181 Pa. 530.
The principle is thus stated in Pepper v. Philadelphia, 114 Pa. 96: “Where a party has acted honestly, with intent to fulfill his contract, and has performed it substantially but has failed in some comparatively slight particulars, the other party cannot hold and enjoy the fruits of his labor without paying a fair compensation according to the contract, receiving credit for whatever loss or damage he suffered.”
It is not intended that the indulgence thus shown a contractor is to be applied in cases of fraud or gross negligence, or when one unjustifiably abandons the undertaking before its completion, but only where an intention is disclosed to complete the work in good faith. Whether the party acted in good faith, and whether the departures from the contract were material are generally questions for the jury: Truesdale v. Watts, 12 Pa. 73; Pallman v. Smith, 135 Pa. 188; Holmes v. Chartiers Oil Co., 138 Pa. 546; Cosgrove v. Cummings, 190 Pa. 525; Albert v. Frick, 1 Penny. 132; Gallagher v. Sharpless, 134 Pa. 134.
The learned trial judge charged in substance that if the
Gillespie Tool Co. v. Wilson, 123 Pa. 19, is a case of a test well for oil and gas in undeveloped territory. A considerable part of the hole near the bottom was only four or four and one-fourth inches in diameter instead of five and five-eighths inches. It was obvious, as well as shown by the evidence, that a four and one-fourth inch well would not discharge as much gas as one five and five-eighths inches in diameter, nor was there any attempt to excuse or justify the variance from the terms of the agreement.
In Caughey v. Parker, 26 Pa. Superior Ct. 289, there was a total failure to perform. True, a well was drilled into the fourth sand but the tools were lost in the well and the contractor was unable to remove them, by reason of which the well was lost to the owners.
In Hoover v. Beach Creek Coal, etc., Co., 29 Pa. Superior Ct. 615, a gross fraud in a most material matter was perpetrated in the execution of the contract by the agent of the plaintiff.
The quotation in the appellee’s paper-book from Gibbs v. School District, 195 Pa. 396, is a recital in the opinion of the Supreme Court of the reasons given by the court below for giving binding instructions for the defendant, but that case was reversed and was decided on a proposition not involved in this case.
The judgment is reversed and the record remitted to the court below to dispose of the motion for a new trial.