Felin v. Futcher

• Citation: 51 Pa.Super. 233
• Decision Date: 18 July 1912
• Docket Number: 102-1911
• Parties: Felin v. Futcher, Appellant
• Court: Superior Court of Pennsylvania

51 Pa.Super. 233

Felin v. Futcher, Appellant

No. 102-1911

Superior Court of Pennsylvania

July 18, 1912

Argued November 21, 1911 [Syllabus Matter]

Appeal by defendants, from judgment of C.P. Delaware Co.-1907, No 878, on verdict for plaintiffs in case of Charles F. Felin William L. Ludascher and Amos Y. Lesher, trading as Charles F. Felin & Company, v. Charles E. Futcher, owner or reputed owner, and the Delaware County Trust, Safe Deposit and Title Insurance Company.

Scire facias sur mechanic's lien. Before Johnson, P. J.

The facts appear by the opinion of the Superior Court.

Verdict and judgment for plaintiffs for $ 511.06. Defendants appealed.

Error assigned was in refusing binding instructions for defendants.

Reversed.

E. H. Hall, with him George Vaux, Jr., for appellants. -- It is to be observed here that this was a bid for a round sum in which " stock materials" were to be furnished. There was no figuring in this proposal by which the defendants could discover a mistake in addition or that two figures had not been added together: Neill v. Shamburg, 158 Pa. 263; Laidlaw v. Organ, 15 U.S. (2 Wheaton), 178; Duke of Beaufort v. Neeld, 12 Cl. & F. 248; Susquehanna Mut. Fire Ins. Co. v. Swank, 102 Pa. 17; Youngstown Electric Light Co. v. Poor Dist., 21 Pa.Super. 95; Diman v. R. R. Co., 5 R.I. 130; Brown v. Levy, 69 S.W. 255; Kintzing v. McElrath, 5 Pa. 467; Hershey v. Keembortz, 6 Pa. 128; Rose v. Barclay, 191 Pa. 594.

Plaintiffs' negligence estops them from recovery: Coppes v. Keystone Paint & Filler Co., 36 Pa.Super. 38; Bierman v. Lebanon Valley College, 20 Pa.Super. 133; Cooper v. Ins. Co., 50 Pa. 299.

Wayne P. Rambo, with him John M. Broomall and Ormond Rambo, for appellees. -- By reason of the mistake of plaintiffs' clerk, which mistake the jury have found was known to the defendant, the minds of the parties never met, and there was no contract: Wills v. Hardcastle, 19 Pa.Super. 525; Hershinger v. Penna. R. R. Co., 25 Pa.Super. 147; First National Bank v. McKinley Coal Co., 210 Pa. 76; Tamplin v. James, L. R. 15 Ch. Div. 215; Garrard v. Frankel, 30 Beav. 445; Shelton v. Ellis, 70 Ga. 297; Mummenhoff v. Randall, 19 Ind.App. 44 (49 N.E. 40); Butler v. Moses, 43 Ohio, 166 (1 N.E. 316); Harran v. Foley, 62 Wis. 584 (22 N.W. 837); Moffett v. Rochester, 178 U.S. 573 (20 S.Ct. 957); Adkins v. Campbell, 64 A. 628; Everson v. Granite Co., 65 Vt. 658 (27 A. 320); Hume v. United States, 132 U.S. 406 (10 S.Ct. 134).

There was gross inadequacy of consideration in plaintiffs' proposal, and the jury have found that the defendant, a man of many years' experience in the building business and familiar with values, knew that a mistake had been made, and to permit defendant to take advantage of plaintiffs' mistake would be a fraud: Hume v. United States, 132 U.S. 406 (10 S.Ct. 134); Earl of Chesterfield v. Janssen, 2 Ves. Sen. 125.

Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.

OPINION

HEAD, J.

In the spring of 1907, the defendant, contemplating the erection of eight houses, had detailed plans and specifications prepared showing, inter alia, the kind and quantity of lumber and mill work required for each house. These plans were submitted among others to the plaintiffs whose business was the manufacture and supply of such materials. They were asked for a bid. On April 25th they submitted detailed lists of lumber and mill work which they had figured out from the plans. Each of the several sheets covered by the items of these lists contained the following warning, viz.: " Read your estimate carefully and see that nothing is omitted, as we agree to furnish only the material enumerated below. We always figure on stock materials unless otherwise specified." Separate prices for each item were not given but the entire list was inclosed with and as a part of the following letter, viz.: " We will furnish the lumber, mill work and stair work as per our lists dated April 25 for eight houses to be erected in Lansdowne for the total sum of three thousand nine hundred and twenty-five ($ 3925) dollars. Trusting we will receive the order, we remain, & c."

Upon the receipt of this bid, the defendant, without hastily accepting it, appears to have reached the conclusion that he would be justified in making some changes in the lumber and mill work which would add sensibly to the cost of each house. He therefore made out a list of the proposed changes and again submitted the whole matter to the plaintiffs for another bid. On May 2d the plaintiffs wrote him making a detailed statement of the proposed changes without any detailed prices and made this bid, viz.: " We will furnish the entire lot for the total sum of four thousand five hundred and sixty-five dollars and sixty cents ($ 4565.60). Trusting we will receive the order, we remain, & c." On the same day (May 2d) the defendant signed and delivered to the plaintiffs the following acceptance of the revised bid, viz.: " Your estimate dated May 2, 1907, amounting to $ 4565.60 for mill work and stair work and lumber for buildings, & c. is hereby accepted. Terms & c."

Deliveries under this contract began promptly and progressed as the construction of the houses advanced, without any question on either side, until about the middle of August. At that time the larger portion of the materials enumerated in the plaintiffs' bid had actually been delivered and incorporated into the buildings for which they were designed, but a very considerable amount yet remained undelivered. The plaintiffs then informed the defendant that a serious blunder had been made in the preparation of their bid in that they had named, as the total price, what was in fact only intended to be the price of the mill work; the price of the lumber which had been as they alleged, computed separately, and which amounted to between $ 3,000 and $ 4,000, having been inadvertently omitted. They desired the defendant to agree to some modification of the contract, the precise character of which is not disclosed by the testimony, which would relieve them from the consequences of their mistake and require him to pay a large amount in excess of the bid he had accepted. They attempted to explain to him that the discrepancy between the value of the materials agreed to be furnished and the amounts named in the several bids they had made was so great that the defendant's experience as a builder must have warned him that a serious mistake had been made, etc. The defendant replied that he realized the price was low and that was the reason he had accepted the final bid, after having added considerably to the material designed for each house, but if a mistake had been made that was not his concern and he could now do nothing to remedy it. Without any notice to him of the attitude which the plaintiffs would then assume, they appear to have determined to go on and complete their contract and finally furnished the remaining portion of the material included in their bid. They then demanded of the defendant, without any reference to the contract at all, that he pay for all of the material furnished at the market prices of the various items, and, upon his refusal so to do, filed a mechanic's lien for the entire amount remaining due on that basis, after deducting the payments which the defendant had from time to time made according to the terms of the written contract.

The defendant thereupon filed his petition under the provisions of the twenty-fifth section of the act of 1901, which was so proceeded in that the court below found that the amount admitted by the defendant to be still due on each of the eight houses was $ 226.79, and ordered that, upon the payment of that sum and the giving of security for the future payment of any additional sum that might be found to be due to the plaintiffs, the lien should be stricken off. The defendant then paid to the plaintiffs the sum of $ 226.79 with interest and costs, filed the bond, and the present issue was prepared to determine what further sum, if any, was due to the plaintiffs. The issue, as required by the statute, was to be tried as if a scire facias had been issued upon the lien.

On the trial the plaintiffs were permitted to offer evidence, over the objection of the defendant, of the market price, at the times of delivery, of all the items of the lumber and mill work which had been specified in their bids and furnished by them. They further showed that the defendant was a builder of experience and as a result thereof asked the jury to find he knew, or should have known that a serious mistake had been made in the bids. From these facts, if established to the satisfaction of the jury, the learned trial court instructed the latter they might draw the inference that there never had been a valid contract between the parties as to the price of the material furnished; and permitted them to find a verdict for something over $ 500 as the balance due on the single building to which alone this proceeding applied. Judgment was afterwards entered on the verdict for the amount named with interest and costs, and the defendant appeals.

From time immemorial equity has sanctioned the rescission or compelled the reformation of written contracts where it was clearly made to appear that both parties had entered into the contract on the mutual but mistaken assumption of the existence of some fact; or where, owing to the ignorance or lack of skill of the scrivener, or the fraud of one party, the written instrument did not fairly express what had in fact been mutually agreed on; or where the contract being still executory and having been suddenly entered into, its execution would result in such great injury to the one party that it would be unconscionable on the part of the other to...