Danville Bridge Company v. Pomroy & Colony

• Decision Date: 01 January 1864
• Citation: 15 Pa. 151
• Court: Pennsylvania Supreme Court
• Parties: Danville Bridge Company versus Pomroy & Colony.

15 Pa. 151

Danville Bridge Company versus Pomroy & Colony.

Supreme Court of Pennsylvania.

ERROR to the Common Pleas of Columbia county.

Statement on part of plaintiffs in error.—On the 11th May, 1846, plaintiffs in error entered into an article of agreement with David N. Kownover and Chester B. Evans, for the latter to build them a bridge across the river at Danville, where one had stood, which was destroyed by a freshet in the spring of 1846. The size of the piers and abutments and manner of building them is most particularly set forth in the agreement. But the manner of building the superstructure is not particularly described, but it was to be "framed upon the `Burr plan,' similar in all respects to the State bridge across the mouth of the west branch at the town of Northumberland, except," &c. The agreement stipulates "the whole of the work shall be subject during its progress to the supervision and direction of the engineer in the employ of the company, who shall from time to time give such directions as to the form, dimensions, and manner of constructing said work as may be necessary to carry out the plan contemplated in these articles." It also stipulates that "the bridge shall be finished by the 1st day of January, 1847, and if not finished by that day, then that the said Kownover and Evans shall pay, as damages, an amount equal to the tolls received during the corresponding days and time of the year previous to the destruction of the late bridge, until the said bridge shall be completed;" and "that 12½ per cent. on the estimates of the engineer shall be retained by the said company until this contract is fully performed and fulfilled."

It was also agreed upon that at the end of each month, the work done and the materials procured, shall be estimated by the engineer of the company, and the said estimate shall be paid on the tenth day of the next month, in cash, until $10,000 shall have been paid. Thereafter, the said contractors shall receive for said payments, the bonds of the said company, until $10,000 more shall have been paid. The said bonds shall be made payable to bearer, and of such amounts as the said contractors may require. The times of payment were mentioned. For the balance that may be due after the payment of $20,000, the company were to issue their bonds, &c.

It appears that on the 26th June, 1846, Kownover & Evans entered into an agreement with Pomroy & Colony, for the latter to build the superstructure of the bridge — the former to furnish the materials. The Bridge Company WERE NOT IN ANY MANNER PARTIES TO THIS AGREEMENT, and it was alleged on the part of plaintiffs in error, that they had not any knowledge of its contents, nor of the fact of any contract between them. Evans died in spring of 1847, and on 17th June, 1847, Kownover gave Pomroy & Colony an order upon the bridge company, of that date, as follows: —

"Messrs. Directors and Managers of the Danville Bridge Company: — Sirs: Pay to Pomroy & Colony four thousand seven hundred and sixty-six dollars and sixty-one cents, out of the funds called for by my contract for building said Danville Bridge, to be paid monthly, agreeable to the monthly estimates upon the work of the superstructure of said bridge, and subject to a discount of twelve and a half per cent. until the work of said superstructure shall be completed agreeable to the plan and specification for said bridge — and then the amount due, together with the discount, is to be paid. If said managers will accept the above, they shall for ever be discharged from paying the above to me. The above is to be in equal proportions of those bonds which fall due first and those that last fall due.

                                                          D. N. KOWNOVER."
                

"June 17, 1847."

10th July, 1847, the order of D. N. Kownover, in favor of Pomroy & Colony, of 17th June, 1847, was accepted. The company paid Pomroy & Colony, upon this order, $3200 in various payments in full of the monthly estimates, less 12½ per cent., until Nov. 1847, when the engineer refused to grant an estimate upon the work of the preceding month, on account of its defective character.

The bridge was not crossable for teams until 5th November, 1847, 10 months and 5 days after the time fixed by the agreement for its completion, and on that day the builders opened it. It continued open one week, and Colony shut it up. It was alleged that at that time the embankment was not done.

On the part of the defendants in error, it was stated that on 10th of July, 1847, after the erection of at least two spans of the bridge, and with a knowledge of the then condition of the bridge, and that the superstructure was being erected by Pomroy & Colony, they accepted the order. In December, 1847, while Pomroy and Colony were yet working at the bridge, the Bridge Company employed hands and took forcible possession of the bridge, without the consent of Kownover, and against the consent of Pomroy & Colony, and have had the possession and use of the bridge ever since. Pomroy & Colony went on with the work, and finished the bridge, and on the 10th of August, 1848, the company having previously paid them $3200, in cash and bonds, they demanded the balance, $1566.61, in the bonds of the company, which Hibler, the president, refused to give to them. They then brought suit.

The Bridge Company contended that Pomroy & Colony were not entitled to recover any thing in this action, and alleged as reasons —

1st. That the superstructure was unskilfully constructed and framed, and the work badly done.

2d. That skewback braces, tins at the joints of the queen-posts and truss-braces, and cast-iron pedestals at the entrances, were omitted, and that the floors were not fastened down.

3d. That any deficiency in the work, or any of these omissions is a breach of a condition precedent in the order, and is not the subject of compensation, but is a positive bar to recovery, without regard to their value.

The plaintiffs below asserted that they had completed the work of the superstructure according to the plan and specification of the said bridge, that the evidence was voluminous, and that there was none which attached negligence or wilful misconduct to them.

Notice of special matter was given as follows: —

You are hereby notified, that upon the trial of this cause, the defendants will prove that the superstructure of the bridge referred to in your declaration, and in the order recited therein, never was built and completed, nor the work of the same done agreeably to the plan and specifications referred to in the contract mentioned in the said order, made between the defendants and David N. Kownover and Chester B. Evans, for building said bridge — also, that some most material portions of the work required by said plan and specifications and contract were entirely omitted — such as skewback braces, cast-iron pedestals at the entrances, sheet-iron or tin covers for the joints at the junction of the king-posts and truss-braces. That some other portions of the said work are only partially and badly done — such as the painting and flooring. That the superstructure of the whole bridge is unskilfully constructed and framed, and not according to the said plan and specification, and its workmanship defectively and badly executed — and that some of the materials of which the said superstructure of the bridge is built are defective, deficient, and unsuitable; and that in consequence of these omissions, defects, deficiencies, unskilfulness, bad work and bad materials, the defendants have sustained damage to a large amount.

The case was tried before J. B. ANTHONY, Pres't Judge. On the trial, various points were proposed on the part of the defendants. To the first of them, the court charged: — The terms and conditions of the order constituted a part of it, and to entitle the plaintiffs to recover thereon, it is necessary to show that the superstructure of the bridge was completed according to the terms of the agreement referred to in the order, unless defendants accepted the bridge, received the tolls, and reduced it to use in the manner it was finished by plaintiffs. If the jury believe that defendants accepted the bridge, received the tolls, and reduced it into use after its erection, they would be entitled only to such deduction from plaintiffs' demand as is sufficient to compensate them for defective execution of the contract.

To another, it was charged: — That the general rule is, that in an entire contract like the present, as set forth in the declaration, it is incumbent on plaintiffs to show performance of all that was stipulated on their part to be done; and on failure so to do, they are not entitled to recover any thing. But when a party acts fairly and honestly, and performs the contract substantially on his part, though he fails in some particulars by a deviation from the contract in some unimportant matters, the other party ought to pay a fair and just compensation, after receiving credit for the loss or damage he sustains from such deviation. In the present case, as the engineer employed by the bridge company superintended the work during the erection of the bridge, and as the defendants took possession of the bridge against the contractors in November, 1847, appointed guards to protect it, and a toll-keeper to receive tolls, and the said bridge has continued under their control and direction from that time till the commencement of this suit — the court, therefore, refuse to give the instructions prayed for on the 4th, 5th, and 6th points of defendants, and are of opinion that these facts, if believed by the jury would amount to a waiver by the Bridge Company of a literal and precise compliance by plaintiffs with the original written contract; but that the Bridge Company would be entitled to a deduction for such defects in the work and such omissions as have been made by the plaintiffs from the amount of the order on which suit is brought.

...