Achenbach v. Stoddard

• Decision Date: 17 April 1916
• Docket Number: 275
• Citation: 98 A. 604,253 Pa. 338
• Parties: Achenbach v. Stoddard, Appellant
• Court: Pennsylvania Supreme Court

98 A. 604

253 Pa. 338

Achenbach v. Stoddard, Appellant

No. 275

Supreme Court of Pennsylvania

April 17, 1916

Argued March 6, 1916

Appeal, No. 275, Jan. T., 1915, by defendants, from judgment of C.P. Northampton Co., Nov. T., 1914, No. 49, on verdict for plaintiff, in case of Edwin J. Achenbach v. David Stoddard, Mahlon Stoddard and Thomas Brinton. Affirmed.

Assumpsit for extra work alleged to have been performed under a written contract. Before BRODHEAD, J.

The opinion of the Supreme Court states the facts.

Verdict for plaintiff for $5,016.20 and judgment thereon. Defendant appealed.

Errors assigned were rulings on evidence and instructions to the jury.

In what we have said the several assignments of error have been fully considered. We find them without substance and they are overruled. The case was submitted under instruction free from error, and the judgment is affirmed.

W. S Kirkpatrick, of Kirkpatrick & Maxwell, with him S. Bruce Chase and Robert A. Stotz, for appellants.

Aaron Goldsmith, with him Everett Kent, for appellee.

Before BROWN, C.J., STEWART, MOSCHZISKER, FRAZER and WALLING, JJ.

OPINION

MR. JUSTICE STEWART:

The questions sought to be raised on this appeal are mainly questions of fact which were for the determination of the jury. The action was to recover on an alleged promise to pay an additional price to that expressed in a written contract for certain work done by the plaintiff. Appellants are the owners as tenants in common of a certain tract of land in Northampton County. Desiring to open up a slate quarry on said tract, and it being necessary for this purpose to remove therefrom the top soil to a depth sufficient to disclose the conditions underlying, they engaged by written contract under date of 25th January, 1913, with the plaintiff, whose business was the excavation of ground and removal of top soil and rubbish in and about slate quarries, to commit to him this work on the following terms and conditions as recited in the contract: "It is therefore understood and agreed that said Achenbach shall open or remove top and place the material removed at such points as directed by the said owner, to a depth as low as can be attained by the use of the steam shovel, the dimensions and locations of the same to be determined and directed by the said owners, and the referred to owners hereby agree to pay to the said Achenbach twenty-five cents (25c.) per cubic yard for all material thus removed." The negotiations between the parties that preceded the execution of the written contract are unimportant. Whatever they were, they were merged in the contract which unassailed must stand as the final and only expression of the intention and understanding of the parties. That the contract as written contemplated a determination and direction by the owners of the dimensions and location of the opening before the work was entered upon is manifest, and that it was so understood by the parties is evident from the fact that by appointment, made immediately upon the execution of the contract, Mr. Brinton, one of the owners, met with the plaintiff upon the premises for the purpose of indicating to him where the location of the opening should be made and marking the lines upon the ground. And this was then and there done, the ground to be excavated as shown by these lines being 100 feet in width and 250 feet in length. The plaintiff thereupon entered on the work and had excavated some 5,000 feet of earth within the location he had been directed to observe, when Mr. Stoddard, one of the owners and one of the defendants, desired the location to be moved further east. In this the plaintiff acquiesced, and had been working on the new location some six months when Mr Stoddard again demanded a change of location and that the opening be made further north and west. So far there is no disagreement in the testimony of the witnesses. At this point we encounter contradiction. The plaintiff testified that when this second change of location was demanded by Mr. Stoddard he, the plaintiff, objected to working further north and west and told Mr. Stoddard that he was not obliged to do so under his contract which gave him but 25 cents per cubic yard, but that he would be willing to dig it for a reasonable price, not less, however, than 45 cents a yard. To this Mr. Stoddard replied, so testifies the witness, "I want you to dig in this new location, and I am willing to pay you a reasonable price for it. Go ahead." Plaintiff thereupon proceeded with the work on the new location and upon its completion demanded to be compensated therefor at the rate of 45 cents per yard. His demand was refused and he brought the present action for its recovery. The defendant, Stoddard, denied having had the conversation with the plaintiff testified to by the latter, and thus was raised the principal issue of fact in the case. It is unnecessary to review the evidence on one side and the...