Texter v. Wachs

Opinion by

Porter, J.,

The plaintiffs in this action seek to recover a balance alleged to be due upon a contract for the erection of a building, for additional work in erecting shelving and counters in one of the storerooms of the building and for work done upon other buildings of the defendant. The contract for the erection of the building was in writing and required the building to be finished by June 1, 1907. The principal question in controversy at the trial arose under the following covenant, viz: “Should the contractors fail to finish the work at or before the time agreed upon, they shall pay to or allow the proprietor, by way of liquidated damages, the sum of ten dollars per diem for each and every day thereafter the said work shall remain incomplete.” It is admitted on behalf of the plaintiffs that, in view of the character and extent of the building operations, the amount thus stipulated to be paid in case the contractors failed to finish the building at the time agreed upon, is to be considered as liquidated damages. There does not seem to be any serious question under the evidence that there was a delay, the building was not finished at the time contracted for. The learned judge of the court below properly held that the amount to be paid by the contractors in case of delay must be sustained as a stipulation for liquidated damages, but the appellant, the defendant, complains of the manner in which the question of the responsibility of the contractors to answer for that delay was submitted to the jury.

The court in that portion of the charge which is the subject of the second specification of error charged the jury as follows: “The plaintiff, having entered into this contract, would be required to finish and complete the structure on or before the date named in it, provided there was not any permission given him to delay the work by the defendant or by his agent, namely, the architect, or through weather conditions which would make it absolutely impossible for him to do the work.” If the limitation upon the liability of the plaintiff for delay, as thus stated, had been confined to that part of the instruction which referred to such delay as resulted from the action of the defendant or his agent, the architect, the instruction would not have been so clearly erroneous as to warrant a reversal, for the jury would probably then have understood that the plaintiff was only to have the benefit of such delay as resulted from the action of the defendant or his agent. It would, however, have guarded against misunderstanding by the jury if the court had instructed them that, even if the defendant had to some extent delayed the operation the plaintiff was only entitled to the delay which resulted from that cause. “For the fact 'that plaintiff was obstructed by defendant in strict performance did not absolve it from further effort to speedily perform. When the cause for the delay, the conduct of the defendant, ceased, the obligation to speedily finish was at once reimposed with all its force on plaintiff, and failure then to perform within a reasonable time warrants defendant in invoking the per diem damages for every day of unreasonable delay thereafter-wards”: Iron & Steel Co. v. Tube Works, 184 Pa. 261; White v. Braddock Boro., 159 Pa. 201; Lilly v. Person, 168 Pa. 219. The concluding clause of the instruction, which would excuse the plaintiff for delay resulting from weather conditions, is more serious. This contract was entered into in December, 1906, and required the plaintiffs to complete the building on or before the first day of June, 1907. When parties enter into a contract of this nature for the erection of a building, in our climate, during a period which includes the winter months, they must be presumed to know that the weather conditions will not always be favorable to the execution of such an operation and if they wish to be protected against weather conditions they should do so by suitable covenants. There was in this case no evidence that there had' been an extraordinary storm, or cyclone which destroyed or damaged the work, and the jury ought not to have been instructed that, under the terms of this contract, the weather conditions were an excuse for delay upon the part of the plaintiffs. The second specification of error is sustained.

The instruction complained of in the first specification of error certainly tended to leave upon the minds of the jury the impression that the plaintiff was only to be held answerable for such delay as resulted from his negligence or carelessness. He had covenanted that in case of delay he would pay at a certain rate per diem. The appliances and the number of men which he would employ in the undertaking were for him to determine; if there was delay he must respond according to his contract, unless that delay was caused by the defendant or his agent. The first specification of error is sustained.

The contract contained a covenant that nothing done under the contract was to be considered as extras unless agreed upon in writing and signed by the owner and contractor and certified to by the architect. The appellant contends that this covenant rendered it improper for the court below to admit evidence establishing that, after one of the storerooms had been completed and rented, the plaintiff entered into a contract with the defendant to place in the store such shelving and counters as the tenant desired, and agreed to pay for such work the sum of $125. The work thus done was not an essential part of the building; it was of such a character that if it had been done by the tenants they would have been entitled to remove the trade fixtures, at any time during their term. The contract was an independent one and the parties had agreed upon the price to be paid for the work; the evidence was properly admitted and the specification of error is overruled: Moore v. Carter, 146 Pa. 501. The evidence as to the cause of the delay in completing the building and the period of time during which it continued was conflicting and it would have been error for the learned judge of the court below to have given binding instructions in favor of the defendant.

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