Mitchell v. Dougherty

• Decision Date: 06 December 1898
• Docket Number: 18.
• Citation: 90 F. 639
• Parties: MITCHELL v. DOUGHERTY.
• Court: U.S. Court of Appeals — Third Circuit

90 F. 639

MITCHELL v. DOUGHERTY.

No. 18.

United States Court of Appeals, Third Circuit.

December 6, 1898

R. C Dale, for plaintiff in error.

J Washington Logue and Pierce Archer, for defendant in error.

Before ACHESON and DALLAS, Circuit Judges, and KIRKPATRICK, District judge.

DALLAS Circuit Judge.

This case is before us on writ of error to the judgment of the circuit court for the Eastern district of Pennsylvania in an action by Frank A. Mitchell, plaintiff in error, against William R. Dougherty, defendant in error. Dougherty on May 15, 1896, had contracted with Archbishop Ryan for the erection of a certain building; and on May 22, 1896, the plaintiff, Mitchell, agreed with the defendant, Dougherty, to do a certain portion of the work, and furnish the materials therefor. Both contracts were in writing. The one between Archbishop Ryan and William R. Dougherty provided as follows:

'It is mutually agreed between the parties to this agreement that if any alterations, additions, or omissions are made in the work during its progress, the value of the same shall be decided by the engineers and architects, who shall make an equitable allowance therefor, and shall add the amount of said allowance to the contract price if the cost of the work has been increased, or shall deduct the amount from the contract price if the cost of the work has been lessened, as they, the said engineers and architects, may deed just and equitable. And it is mutually agreed and distinctly understood that the decision of the engineers and architects shall be final and conclusive in any dispute which may arise between the parties to this agreement relative to or touching the same; and each and every of said parties do hereby waive any right of action, suit or suits, or other remedy, in law or otherwise, by virtue of said covenants, so that the decision of the said engineers and architects shall, in the nature of an award, be final and conclusive on the rights and claims of said parties.'

The contract between the plaintiff and the defendant recited and provided as follows:

'Whereas, the said Dougherty has entered into articles of agreement with his Grace, Most Reverend P. J. Ryan, bearing date the fifteenth day of May, 1896, for the erection of certain brick buildings at Fatland, Pa., known as the 'R. C. Protectory,' according to certain plans and specifications therein referred to, which said articles of agreement, plans, and specifications are to be considered as if hereto attached, and made as much a part of this contract as if specially recited herein, all information concerning same being known to the said Frank. A. Mitchell; and whereas, the said Frank A. Mitchell has agreed to subcontract with the said Dougherty for a certain portion of the work and materials necessary to be supplied by him in the erection and completion of the said building; and whereas, it has been agreed that, as to so much hereof as has been thus subcontracted for, the said Frank A. Mitchell, for the consideration hereinafter named, is, as between himself and the said Dougherty, to stand in the place of the latter, and to do everything in, about, the concerning the same as is provided in said Dougherty's contract with said Archbishop . J. Ryan, subject to all its terms and restrictions, so that the said Dougherty shall be indemnified and saved harmless from all loss, costs, and charges in and about the said portion of work and materials: Now, this agreement witnesseth that the said parties do hereby, in consideration of the premises, and of the mutual covenants herein contained, covenant, promise, and agreed to and with each other, each binding himself, his heirs, executors, and administrators and assigns, to the other, his heirs, executors, administrators, or assigns, as follows: (1) The said Frank A. Mitchell further agrees to furnish all the labor and material necessary to complete all the roof work, galvanized iron, copper, tile, and tin, etc., in strict accordance with plan and specifications prepared and shown by Wilson Bros. & Co., and to their entire satisfaction. * * * The said Archbishop P. J. Ryan having the right to add to, change, or modify any part of the plans of aforesaid building during its progress, the said Frank A. Mitchell will do what shall thus in the above-specified matters be entailed upon the said Dougherty; and any such modifications shall not affect this contract, in regard to the considerations, the time for completion, or other matter, unless a specified agreement making provision for the same shall be reduced to writing, and signed by the parties hereto.'

The plaintiff entered upon the work which he had undertaken to perform, but after he had been engaged in it for about six weeks he was required by the defendant to proceed no further until the owner should decide whether a sort of tile different from that named in the contract would not be used. The plaintiff was also requested to present an estimate of the cost of making the contemplated substitution, and in January, 1897, he did present such an estimate. The matter was then held under consideration until March 31, 1897, when the defendant addressed to the plaintiff a letter as follows:

'Philadelphia, March 31, 1897.

'Mr. Frank A. Mitchell, 104 West Fifth Street, Wilmington, Del.-- Dear Sir: The architects have declined to consider at this time the question of what allowance is to be made for the placing of the Celadon tile, instead of the Ludowici, upon the Protectory buildings at Fatland. As matters present themselves to me to-day, I find the condition to be that the change will have to be made immediately, and the work prosecuted. While I have received from them no direct statement that they will not pass upon the claim, they have intimated that the future will be the proper time for them to consider it, and are now engaged in getting estimated from other people for the purpose of having some one else do the work. It is necessary, therefore, that the work of laying the Celadon tile should be commenced at once. The Celadon people,--having knowledge for some time back, from Wilson Bros., that their tile was to be used,-- I believe, are in shape to make an immediate shipment. I have therefore ordered to-night that some tile be shipped, so as to prevent Wilson Bros., if possible, from taking the work out of our hands. The position in the matter is just this: That what, if anything, is to be allowed for the change, is to be fixed by the architects in the future. What I get, you are to receive; and, in presenting your claim to them, I let be distinctly known that, while adopting it as my claim, I did so as it was the amount you stated it would take to make the change. I have ordered from the Celadon people, feeling that in this matter I am protecting your interests as well as my own, because, as you know, your contract places you in your dealings with me in the position that I occupy with the owner.

'Yours, truly,

William R. Dougherty.'

Plaintiff declined to proceed in accordance with the proposed substitution, without an agreement making provision for the same, and in this he was clearly justified by the express terms of his contract. The court below appears to have so understood the matter at the time of the trial, for the learned judge charged that:

'If the plaintiff was prevented going on to complete the work by being required to substitute a different description of tile, and the owner of the property declining to agree upon the cost of this substitution, then the plaintiff was justified in discontinuing the work, and was not required to proceed until the cost had been agreed upon, and the agreement reduced to writing, because, if he had thus proceeded, he would have been precluded by the strict terms of his contract from recovering anything on that account. * * * It seems an entirely plain and unavoidable deduction from the evidence that the plaintiff was requested to discontinue the work temporarily while the subject of introducing a different tile was under consideration; that the different tile was afterwards substituted by the builder for the one named in the contract, and that the plaintiff was entitled to make a proposal of the cost of this change; that he complied with it; that the only answer, so far as the court remembers, that he received to this proposal was that the architects, to whom the subject had been referred, were not willing to pass upon that question then, but that the work should go on, and it would be determined in the future. Now, the court says to you that, if that is the fact, it was a justification to the plaintiff for discontinuing the work. Then, when the work was subsequently put in the hands of another for completion, he had no further concern with it. You will say, however, how that question of fact should be decided.'

Thus, it appears that it was left to the jury, with proper instructions concerning the requirements of the contract, to say whether the plaintiff had not done all that it was incumbent upon him to do to obtain the decision of the architects; and the jury having found, as must now be assumed, that his failure to secure such a decision resulted wholly from the refusal of the architects to act when they should have acted, we think, aside and apart from the question presently to be considered, that the plaintiff ought not to have been turned out of court merely because a decision by the architects had not been procured.

The court below, notwithstanding the verdict, entered judgment in favor of the defendant upon a point which had been reserved upon the trial, as follows:

'That the plaintiff is bound by the provisions of the contract entered into between Dougherty and the owners, waiving suits at law in

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