J. B
McPHERSON, District Judge.
This
controversy arises upon the following undisputed facts
Richard Smith of the city of Philadelphia died in September
1894, leaving a will by which he provided inter alia for the
erection of an elaborate and costly structure in Fairmount
Park. He spoke of this structure as 'a monumental
memorial,' and directed the plaintiff to erect it as
trustee under the will, specifying that
'The
said memorial is to include equestrian statues in bronze of
Major-Generals George B. McClellan and Winfield S. Hancock
and colossal statues in bronze of Major-Generals George G
Meade and John F. Reynolds; the niches in the right and left
wings of the design to have pedestals to receive bronze busts
of the following distinguished Pennsylvanians, namely;
Governor Andrew G. Curtin, Major-General John F. Hartranft,
Admirals David D. Porter and John A. Dahlgren, General James
A. Beaver, Major-General S.W. Crawford, and in addition
thereto the architect, James H. Windrim, and my executor,
John B. Gest. A mural tablet in bronze will be placed upon
the pedestal stage of one of the main columns with the
inscription 'This Monumental Arch presented by Richard
Smith, Type Founder, of Philadelphia, In memory of
Pennsylvanians who took part in the Civil War, whose strife
was not for aggrandizement, but when conflict ceased, the
North with the South united, again to enjoy the common
heritage left by the Fathers of our Country, resolving that
thereafter all our people should dwell together in
unity.'
'Upon
the pedestal stage of the other main column will be placed
upon a bracketed rest, on the right of the entrance front, a
statue of myself, in bronze, and underneath, the name of
Richard Smith, in large letters. The central part of said
memorial to be for a carriage way, and on either side
passages for pedestrians. And I direct that the entire
expense of the memorial and the erection and completion
thereof shall not exceed five hundred thousand dollars
($500,000).'
In the
course of carrying out the testator's instructions, the
plaintiff entered into a written contract with Paul W.
Bartlett, a sculptor, on November 2, 1898, by which Bartlett
agreed:
'That
he will himself design, model and sculpture, to the best of
his art and skill, an equestrian statue of the late
Major-General George B. McClellan, and complete the same in
bronze set in place as a part of the monumental Memorial to
be erected in West Fairmount Park, Philadelphia, under the
provisions of the will of the late Richard Smith, within
two years from the date of September 1, 1898.'
The
agreement then went on to provide:
'The
total height of the horse and rider shall be one hundred
and eighty inches, more or less, above the bronze plinth or
base upon which the statuary rests, the sizes of the horse
and rider to be in proportion thereto.
'The
model shall be subject to the approval of the party of the
first part, or its authorized agent. After the model has
been approved by the party of the first part, or its
authorized agent, the same shall be cast in bronze of the
formula ninety per cent. pure copper, seven per cent. pure
tin, and three per cent. zinc or spelter the section of the
metal in the casting to be in no place less than one
quarter of an inch in thickness; the casting to be done by
a reputable bronze foundry, executed and finished in the
most artistic and workmanlike manner.
'The
party of the first part, or its authorized agent, shall
have the right to test the bronze used in said castings,
and reject the same if found not in accordance with the
formula stipulated in this contract; and, for the purpose
of making tests, coupons shall be cast upon each piece of
casting to be removed by the representative of the party of
the first part for such tests.
'The
castings shall be inspected and approved at the foundry by
the authorized agent of the party of the first part before
acceptance.
'The
plinth or base upon which the statue rests, shall have a
concealed gutter cast to receive all drippings from storm
water, and connection provided to a conductor furnished
under another contract. There shall also be constructed
in the plinth or base in a suitable position, and according
to working drawings provided by the party of the first
part, a trapdoor and frame for access to the statue from
the core wells provided in the contract for granite work.
'The
statue shall be attached to the granite work with proper
bolts, clamps, etc., of bronze, in the best style of art,
and to the entire satisfaction of the authorized agent of
the party of the part.
'Second.
The party of the second part hereby agrees to submit at his
studio to the party of the first part, or its authorized
agent for approval, one or more sketch models in clay, wax
or plaster, of the statuary he is to execute, at a scale of
two and a half inches to one foot, prior to the
commencement of any work upon the enlarged model; if the
party of the second part fails to make this model
acceptable to the party of the first part, then this
contract is void, and ceases to be obligatory on the party
of the first part, or upon the party of the second part; if
said sketch model is approved, the party of the second part
further agrees to make a duplicate thereof in plaster and
deposit the same with the said trustee; but it is
distinctly understood that said duplicate is not to be
published, and is to remain the property of the party of
the second part; and the said party of the second part
further agrees to furnish and set in position, a full sized
model in staff or cement of the subject from an approved
sketch, upon a temporary full sized model of the Monumental
Memorial to be erected in staff in said park, under a
contract with other parties.
'The
said party of the second part agrees after the full sized
model has been set in position on the staff structure, to
make such modifications in dimensions or design as may be
mutually agreed upon by the parties hereto.
'Third.
The party of the second part also covenants and agrees that
according to the provisions of this agreement he will
proceed without delay to prepare the sketch model, the
model for the staff structure, and the finished model, and
cast the equestrian statue; that he will insure said model
and statue in an insurance company satisfactory to the
party of the first part, until the said statue in bronze
shall be completed, and set in place, and in an amount to
be increased from time to time, according to the payments
made herein and equal to the total amount thereof, pay the
premium of insurance thereon, and assign and deliver the
policy of insurance to the party of the first part; that he
will ship said statue at his own expense to the city of
Philadelphia, in a proper manner to prevent injury in
transportation, and that he will set it up on the said
Monumental Memorial in the city of Philadelphia, in the
position thereon designated, in conformity with the
provisions of this contract; and that upon the completion
of said statue, the same shall, upon being accepted by the
party of the first part, be free from all incumbrances.
'It
is hereby specifically covenanted and agreed that no lien
shall be filed against said statuary or Monumental
Memorial, by either the contractor or subcontractor, or
other person or persons.
'Fourth.
It is further covenanted and agreed by and between the said
parties of the first and second parts, respectively, that
no change of any kind or character whatever shall be made
in the design of the sketch model as approved, unless such
change be agreed to in writing, and signed by the parties
hereto, respectively; and the party of the second part
shall make no claim of any kind or character whatsoever for
any extra compensation of said equestrian statue, either
for services rendered or materials furnished.
'Fifth.
And it is further agreed by and between the said parties of
the first and second parts that the said party of the
second part shall promptly and without delay prosecute the
work to be done by him under this contract, with all
diligence, to insure the completion thereof within the time
limit of this contract; that if he should fail to commence
the said works promptly, as herein provided, or shall fail,
in the judgment of the party of the first part, with
reasonable diligence to prosecute the same as herein
provided, then, and in either case, the said party of the
first part shall have the power to annul this contract by
giving notice in writing to the party of the second part,
or his legal representatives; and upon the giving of such
notice, all moneys unpaid on account of this contract shall
be and become forfeited to the said trustee (party of the
first part) and the party of the first part shall thereupon
be authorized to proceed to provide for the completion of
said sculpture and statuary,
wholly free and discharged from any and all obligations to
the party of the second part in respect to the matters and
works mentioned in this contract, with the right of party
of the first part to compensation from the party of the
second part for such damages as may result from his failure
to faithfully keep and perform this agreement.
'Sixth.
The said party of the second part shall give to the party
of the first part the written bond of a surety company
satisfactory to the party of the first part, for the
faithful performance by him of the terms of this agreement
(said bond to be increased from time to time, according to
the payments made
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