Brown v. Foster

• Decision Date: 08 January 1866
• Citation: 51 Pa. 165
• Court: Pennsylvania Supreme Court
• Parties: Brown <I>versus</I> Foster <I>et al.</I>

Page 165

51 Pa. 165

Brown versus Foster et al.

Supreme Court of Pennsylvania.

January 8, 1866.

ERROR to the Common Pleas of Allegheny county.

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H. Burgwin and R. Woods, for plaintiff in error.—This was a special contract for work to be done by a certain day; to be paid for, half during its progress, the remainder by notes at three and six months. The work was not done at the day — by whose default matters not. Plaintiffs were permitted to give the agreement in evidence under the common counts, and to recover both deferred payments, before the time had elapsed from finishing the work; the latter payment before the expiration of the time from the day fixed for finishing the work; without demand and refusal of notes for the deferred payments. This was wrong: Eckel v. Murphy, 3 Harris 488; Girard v. Taggart, 5 S. & R. 19; Mussen v. Price, 4 East 147.

The construction of the contract is this: — Brown had machinery in a flat which he wished set up on another. Foster proposes to take the machinery, make certain alterations and new parts, and set the work up complete on the other boat. Foster, thinking that, when he comes to set up the work, there may be some work to be done to accommodate the work and boat to each other, therefore adds a clause to be paid for such additional work. If the terms of the contract are ambiguous, the construction should lean in favour of Brown, Foster having written it. The defendant in error gives too broad a meaning to the word "preparatory." It was work preparatory to setting up the machinery when ready to be set up; not work preparing the machinery for being set up. The contract provided for "repairs and materials;" if the parties designed what is contended for by Foster, they would have said "other repairs."

Barnhart v. Riddle, 5 Casey 92, justifies the offer to prove the proper application of the terms in the parenthesis.

The true measure of Brown's damages for delay was what his boat would have earned, less expense of running, &c.

Smith & Harper, for defendants in error.—The contract was given in evidence mainly to fix the price of certain parts of the work. The whole work was complete; this was an adequate consideration to raise a promise. When a special contract remains executory, the party must declare specially; when executed, he may declare generally: Brooke v. White, 1 Bos. & Pul. 330; Alcorn v. Westbrook, 1 Wils. 115; Algeo v. Algeo, 10 S. & R. 235; Harris v. Liggett, 1 W. & S. 301. The jury found that the delay was caused by Brown; therefore the Fosters were not bound to postpone bringing suit accordingly. The notes not having been tendered, Fosters could bring their suit at once, and recover on the common counts. In the cases cited for plaintiff in error, the claim was certain and determined: here it was uncertain till the work was done.

The opinion of the court was delivered, January 8th 1866, by STRONG, J.

The work which the plaintiff undertook by special contract to perform had been completed and accepted by the defendant before the action was brought. It was therefore admissible for the plaintiff to sue in indebitatus assumpsit, and give in evidence the special contract, not as proof of the promise declared on, but as furnishing a rule by which the damages for its breach were to be measured. And the right of the plaintiff to declare generally, and use the special contract as evidence, was not affected by the fact that the work was not completed until after the day specified for its completion. However anomalous it may seem that the law should imply a promise when there is an express one, it is no longer to be doubted that when the work stipulated to be done by an unsealed written contract has been fully completed, there may be a recovery in general indebitatus assumpsit for its value, though there was a failure to finish it within the time agreed upon. Time is generally regarded as not of the essence of the contract, and so far as the performance is defective in time, it admits of compensation: Harris v. Liggett, 1 W. & S. 301. The written memorandum of agreement between these parties was therefore admissible in evidence, and the first assignment of error is not sustained.

The most important questions raised by the record relate to the construction given by the court to the special contract. The defendant contended that under its provisions the plaintiffs could only charge beyond the sum of $9475, for repairs and materials furnished strictly as preparatory to setting up the machinery when complete and ready to be set up, and not for fitting up and repairing the old machinery, except so far as repairs were made to the old boilers. He insisted that all which could properly be regarded as extra work was such as was rendered necessary for setting up the machinery by the condition of the boat presented by him for its reception. The court, however, was of opinion, and so instructed the jury, that repairs to the old machinery, and materials furnished therefor, were not included in the work and materials, for which the $9575 were agreed to be paid, and that they constituted a proper basis for an additional claim. We think the court construed the contract correctly. Looking at its subject-matter and its phraseology, to which alone can we resort in ascertaining the intention of the parties, it admits of no other construction. The principal subject was the construction of new work for parts of the machinery of an old boat and setting up the work complete in a new boat. No part of the work for which the stipulated sum was agreed to be paid consisted of repairs to the old machinery, with perhaps a single exception. In the enumeration of things to be done by the plaintiffs not an item refers to repairs, unless it be that the wrought-iron work was to be made complete, and even from that were excepted repairs to old boilers. Everything else was new work, and the contract was that the work should be set up on boat complete. For that work thus described and setting it up complete, the defendant agreed to pay $9475. True, the work could not have been set up without also setting up the old machinery, or such parts of it as were not supplied or displaced by the new work. But it may have been possible to set it up complete without making any repairs to the old parts, and even if such repairs were indispensable to setting up the new work, they could not have been foreseen, and therefore they could not have been definitely provided for. Or if they could, had it been the intention of the parties that the old machinery should be repaired as well as the new work done for the stipulated sum, the enumeration of things to be done would have included repairs, for the parties undertook an enumeration. The plaintiffs engaged to take the old machinery and make new parts for it adapted to it in size and plan. It was their own work — their additions — that they undertook should be complete, not all the machinery of the new boat.

It is also manifest from the subsequent clause in the contract that repairs to the old machinery were not understood to be included in the work for which the stipulated price was agreed...