Bigham v. Wabash-Pittsburg Terminal Ry. Co.

• Decision Date: 04 January 1909
• Docket Number: 96
• Citation: 223 Pa. 106,72 A. 318
• Parties: Bigham v. Wabash-Pittsburg Terminal Railway Company, Appellant
• Court: Pennsylvania Supreme Court

72 A. 318

223 Pa. 106

Bigham v. Wabash-Pittsburg Terminal Railway Company, Appellant

No. 96

Supreme Court of Pennsylvania

January 4, 1909

Argued October 21, 1908

Appeal, No. 96, Oct. T., 1908, by defendant, from judgment of C.P. No. 3, Allegheny Co., Aug. T., 1905, No. 174, in case of Kirk Q. Bigham and Thomas B. Hutchinson v. Wabash-Pittsburg Terminal Railway Company. Reversed.

Assumpsit for breach of contract. Before KENNEDY, P.J.

At the trial it appeared that the agreement, for the breach of which the suit was brought, was as follows:

"Made November , 1901, between Kirk Q. Bigham and the Pittsburg Carnegie & Western Railroad Company, Witnesseth:

"That said Bigham doth hereby consent and agree that said company shall build a tramway along the easterly hillside of the Little Saw Mill Run valley from the end of the big cut on line of the Pittsburg, Carnegie & Western Railroad to Banksville avenue, and along Banksville avenue from the Mission School lot to the City line, and with the waste material from the grading of said road amounting to about one hundred and fifty thousand (150,000) cubit yards fill out level from the said hillside to and across Banksville avenue at a grade beginning at Woodville Avenue and rising four (4) feet per hundred feet until a sufficient height be reached to provide for said material by a uniform grade from said point to the City line, making said fill in successive strips running the whole distance.

"In consideration whereof, said company agrees to cross South Hill avenue with its tramway at a grade in such a manner as not to interfere with the use of said avenue; that no earth or other material shall be deposited on land of said Bigham et al. above the grade of Banksville avenue, to be established as aforesaid; that all said material shall be so placed as to make a uniform level surface, the whole width of said Banksville avenue extending at grade to said hillside from the Mission School lot to the city line and carrying Banksville avenue through to Woodville avenue, and shall be left smooth and in good surface, and further that said work shall be done under the supervision of said Bigham and in accordance with the directions by him from time to time given so far as his interests are affected."

Defendant presented these points:

1. The undisputed proof being that the property of the plaintiffs abutted on Banksville avenue, and said avenue having been used as a highway for the public for thirty years past, and being a highway in the city of Pittsburg, it would have been unlawful for the defendant to fill over and across such highway, as provided, as plaintiffs contend, in the contract and the plaintiffs can recover no damages because of defendant's refusal to fill over and across such avenue. Answer: Refused. [22]

2. It being the undisputed evidence in the case that to make the fill the plaintiffs demand and which the plaintiffs contend is as specified in the contract sued on, exhibit "A," attached to the statement of claim, over and across Banksville avenue, would have required the defendant to fill into and at places clear across Saw Mill Run, a well-defined and continuous stream of water, thus preventing the flow of water in said stream, or forcing said waters against and over properties of others than the plaintiffs, and to make such fill extending over and across Banksville avenue, would require defendant to commit an unlawful act and a private and public nuisance. Therefore plaintiffs cannot recover damages for nonperformance by defendant of an act which it would have been unlawful for it to perform. Answer: Refused. [23]

3. That the measure of damage is the difference in value of the plaintiffs' land with the work as now done upon it by defendant and the value it would have had had defendant made the fill as contended for by plaintiffs. Answer: Refused. [24]

4. If the additional filling the plaintiffs demand would not increase the value of their land, they cannot recover. Answer: Refused. [25]

5. Under all the evidence in the case the plaintiffs can recover at best only nominal damages. Answer: Refused. [26]

6. Under all the pleadings and evidence, the verdict must be for the defendant. Answer: Refused. [27]

The court charged the jury as follows:

[You have heard the testimony on behalf of the plaintiffs tending to establish the correctness of their claim, and that evidence is uncontradicted; therefore I instruct you that under the pleadings and evidence in this case your verdict must be for the plaintiffs for the amount claimed in the statement of claim, with interest from the date of the suit. Counsel for plaintiffs has asked me to charge you as follows: That under all the pleadings, evidence and admissions in this case, the verdict of the jury should be for the plaintiffs for the amount claimed in plaintiffs' statement of claim, with interest thereon from the date of bringing suit. This point is affirmed.]

Verdict and judgment for plaintiffs for $41,526. Defendant appealed.

Errors assigned among others were (22-28) above instructions, quoting them.

Wm. Watson Smith, with him George B. Gordon, Willis F. McCook and B. J. Jarrett, for appellant. -- The contract was illegal: O'Brien v. Philadelphia, 150 Pa. 589; Hancock v. Wyoming Borough, 148 Pa. 635; Jones v. R.R. Co., 151 Pa. 30; City of New Haven v. R.R. Co., 62 Conn. 252 (25 A. Repr. 316); Shortall v. Fitzsimons & Connell Co., 93 Ill.App. 232; Trustees v. Oyler, L.R. 31 Chancery Div. 412; Eastern Expanded Metal Co. v. Webb Granite, etc., Co., 81 N.E. Repr. 251; American Mercantile Exchange v. Blunt, 102 Maine, 128 (66 A. Repr. 212); Smith v. Luning Co., 111 Cal. 308 (43 Pac. Repr. 967); Wilcox Mfg. Co. v. Brazos, 74 Conn. 208 (50 A. Repr. 722); Sussman v. Porter, 137 Fed. Repr. 161; Spalding v. Ewing, 149 Pa. 375; Marshall v. R.R. Co., 57 U.S. 314; Doane v. Ry. Co., 160 Ill. 22 (45 N.E. Repr. 507); Tool Co. v. Norris, 69 U.S. 45; Oscanyan v. Arms Co., 103 U.S. 261; Woodstock Iron Co. v. Richmond, etc., Extension Co., 129 U.S. 643 (9 S.Ct. Repr. 402).

In case of nonperformance of contract, the damages are to be estimated as of the date of the breach and not as of any subsequent time: Morse, Williams & Co. v. Arnfield, 15 Pa.Super. 140.

The court below accepted the view that the defendant not having denied the damages, as alleged in the statement of claim, it was precluded thereby, there being no such issue raised in the pleadings. It was impossible for the defendant to raise such an issue until the plaintiffs had laid the ground for the same by an averment of the proper damages in their statement of claim. The defendant cannot certainly be called upon to deny something that is not averred in the statement of claim: Emig v. Spat, 155 Pa. 642; Howell v. Bennett, 81 N.Y.S. Ct. 555; Lucot v. Rodgers, 159 Pa. 58; Electric Co. v. Thackara Mfg. Co., 167 Pa. 530.

It is difficult to point out in advance what the true rule for damages should be, but when the rule applied leads to erroneous result we know it is not the proper rule: McKnight v. Ratcliff, 44 Pa. 156; Seely v. Alden, 61 Pa. 302; Theiss v. Weiss, 166 Pa. 9; Keck v. Bieber, 148 Pa. 645; Kunkel v. Wherry, 189 Pa. 198; Penna. R.R. Co. v. Plank Road Co., 71 Pa. 350; White v. McLaren, 151 Mass. 553 (24 N.E. Repr. 911); West Chester & Phila. R.R. Co. v. Broomall, 18 W.N.C. 44; Watterson v. Allegheny Valley R.R. Co., 74 Pa. 208; Hays v. Street Ry. Co., 204 Pa. 488; Rabe v. Coal Co., 213 Pa. 252.

Thomas Patterson, of Patterson, Sterrett & Acheson, with him R. B. Petty and R. P. Marshall, for appellees. -- We contend that the contract was lawful, and that it must be presumed in this case that the municipal authorities consented to its performance: McNeill v. Reid, 9 Bing. 68; Hobbs v. McLean, 117 U.S. 567 (6 S.Ct. Repr. 870); McCandless v. Steel Co., 152 Pa. 139; Favor v. Philbrick, 7 N.H. 326; Marcy v. Crawford, 16 Conn. 549; Avery v. Halsey, 31 Mass. 174; Coventry v. Barton, 17 Johns. 142; Ives v. Jones, 25 N.C. 538.

The statement of claim made out the plaintiffs' right to recover damages for nonperformance. It therefore was the duty of defendant to set out in his affidavit of defense directly and specifically the matters relied on as a defense to the action: Moore v. Ins. Co., 196 Pa. 30; O'Hare v. Second National Bank, 77 Pa. 96; Braunn v. Keally, 146 Pa. 519; Sigua Iron Co. v. Vandervort, 164 Pa. 572; Bair v. Hubartt, 139 Pa. 96; Carpet Co. v. Latimer, 165 Pa. 617; Organ Company v. Ecker, 184 Pa. 350; Brennan's Estate, 65 Pa. 16; Gannon v. Fritz, 79 Pa. 303; Bank v. Henning, 171 Pa. 399; Todd v. Insurance Co., 9 Pa.Super. 379.

The primary rule in case of the partial failure to perform a contract to do a certain work, is that the party injured is entitled to recover the costs and expenses reasonably necessary to make the work conform to the requirements of the contract, on the principle that the plaintiff is entitled to work such as he contracted for: Stillwell, etc., Mfg. Company v. Phelps, 130 U.S. 520 (9 S.Ct. Repr. 601); Smethurst v. Woolston, 5 W. & S. 106; Morris v. Parham, 4 Phila. 62; Erie & Pittsburg R.R. Co. v. Johnson, 101 Pa. 555; Carli v. Seymour, 26 Minn. 276; St. L., etc., R.R. Co. v. Lurton, 72 Ill. 118; Lawton v. Fitchburg R.R. Co., 62 Mass. 230; Broumel v. Rayner, 68 Md. 47 (11 A. Repr. 833).

Before MITCHELL, C.J., FELL, BROWN, MESTREZAT, POTTER, ELKIN and STEWART, JJ.

OPINION

MR. JUSTICE ELKIN:

This is an action of assumpsit to recover damages for the breach of a contract. A number of the assignments of error relate to the legality of the contract and are predicated upon the theory that appellant company undertook to do what it could not do without the consent of the municipality and adjoining property owner, and if such...