Harton v. Hildebrand
| Decision Date | 03 January 1911 |
| Docket Number | 194 |
| Citation | 79 A. 571,230 Pa. 335 |
| Parties | Harton, Appellant, v. Hildebrand |
| Court | Pennsylvania Supreme Court |
Argued November 1, 1910
Appeal, No. 194, Oct. T., 1910, by plaintiff, from decree of C.P. No. 2, Allegheny Co., July T., 1908, No. 43, dismissing bill in equity in case of William E. Harton v. William E Hildebrand and Frank P. Howley. Reversed.
Bill in equity to restrain the sale of houses. Before SHAFER, J.
The opinion of the Supreme Court states the case.
Error assigned was decree dismissing bill.
The decree is reversed, and the bill is reinstated with a procedendo.
George C. Bradshaw, for appellant.
J. B Eichenauer, with him Paul S. Ache, for appellee.
Before BROWN, MESTREZAT, POTTER, ELKIN, STEWART and MOSCHZISKER, JJ.
We do not agree with the learned court below in dismissing this bill which was filed to restrain the defendant Howley from selling and disposing of the houses until he had paid the debts due from Hildebrand, the other defendant, to the plaintiff Harton.
No exceptions were filed by either party to the findings of fact made by the learned trial court, and, therefore, the case must be disposed of upon those facts. They may be summarized as follows: On June 1, 1901, Hildebrand entered into a contract with Harton for the erection of eight dwelling houses on certain lots fronting on Brackenridge avenue in the thirteenth ward of the city of Pittsburg. On June 9, 1901, Frank P. Howley made a deed to Hildebrand for these lots and he proceeded at once with the erection of the buildings.
On August 7, 1901, Michael P. Howley, father of Frank P. Howley, conveyed to Hildebrand twenty-six lots of ground on Avalon street in the thirteenth ward of the city of Pittsburg. Judgment notes were given to secure the purchase money, but they were withheld from record until the Prudential Trust Company, which was to furnish the money for the erection of the houses, had put on record as a first lien a mortgage from Hildebrand. On September 26, 1901, Hildebrand made a contract with Harton for the erection of nineteen houses on the Avalon street property. This contract provided that the buildings should all be finished by April 1, 1902, and that the contract price should be $62,149 and should be paid "by the owner to the contractor in installments, as follows: 70 per cent of the above amount to be paid on estimated amount of work done as the buildings progress."
The Brackenridge avenue houses were completed in March, 1902. The houses on Avalon street were not finished or nearly finished by April 1, 1902, and Hildebrand and Harton agreed in the winter of 1901-1902 that no attempt should be made during the cold weather to complete these houses on April 1.
The contract price for the Brackenridge avenue houses was $18,000 and when they were completed in March, 1902, there was due from Hildebrand to Harton $5,573.61.
Harton began the Avalon street houses soon after making the contract and carried on the work until December when it was suspended, and began work again about March 1, 1902, and continued until about May 20, 1902, only nine of the houses however being begun at this or any later time by him, this action on his part being apparently acquiesced in by Hildebrand. On the latter date Harton presented to Hildebrand an estimate of the work already done on these houses showing the value of the work done to date, the seventy per cent of the amount required to be paid in installments, the amount of extra work done, the aggregate of the amount already paid him and the balance of $2,496.26 which was then due and payable. This statement was admitted by Hildebrand in writing to be correct.
In May, 1902, a number of mechanics' liens were filed against the Brackenridge property; but no liens were ever filed against the Avalon street houses.
On May 22, 1902, Harton quit work on the Avalon street houses and declared that he would not go on with the contract because of the failure of Hildebrand to pay him the sum owing on the first and on the second contracts as above stated.
On June 14, 1902, Hildebrand conveyed to Frank P. Howley both the Brackenridge avenue and Avalon street properties and as part of the same transaction an agreement was entered into between Hildebrand and Howley by which the latter accepted the conveyance subject to all legal claims for labor and materials furnished in and about the erection of the houses. By this agreement, Howley assumed payment of these claims.
On July 31, 1902, Howley wrote Harton that if the latter was willing to go on under the contract he would aid him as much as he could in the construction of the buildings; that if he declined to go on he would complete the buildings himself. This notice was given under the sixth paragraph of the contract relating to the Avalon street houses which provides that if the contractor at any time during the progress of the work fails to supply material or workmen, or causes any unreasonable suspension of work, the owner may terminate the contract and finish the buildings at the contractor's expense. Immediately upon the receipt of this communication Harton replied that as there was owing to him for a long time at least $2,500 on this contract which had not been paid, and as it was impossible by reason of the nonpayment for him to carry out the contract, that he thereupon declared the contract null and void. Howley then proceeded to finish the nine houses which cost him $12,548, more than the contract price.
The above are substantially the findings of fact by the learned trial judge. He found as a conclusion of law that the contract between Howley and Hildebrand by which Howley agreed to release Hildebrand from all claims against him arising from the purchase of the lots and the placing of the buildings thereon gave any creditor of Howley whose claim arises out of the buildings in question a right of action against Howley for the same. He further found that the contract for the Avalon street houses does not fix any definite time at which payments on account are to be made but provides that seventy per cent is to be paid on the estimated amount of the work as the buildings progress; that an estimate for about $2,500 was made on May 20, 1902, as above stated, and on May 22, 1902, Harton threw up the contract and quit work because this estimate was not paid him. The learned court then finds as the basis of his decree: "It seems to us that under all the circumstances it was altogether unreasonable for Harton to rescind the contract for any such delay of payment as this, and that his subsequent refusal to go on with the work when called upon by Howley, the new owner, to do so justified Howley under the contract in finishing the buildings and charging the cost against Harton." The conclusion is that instead of Hildebrand or Howley being indebted to Harton, as the latter claims in his bill, there is due Howley the difference between $12,548, the excess over the contract price which Howley was required to pay to finish the Avalon street houses, and $5,573.61, the amount due from Hildebrand to Harton on the Brackenridge avenue houses. The bill was dismissed, and the plaintiff has appealed.
The parties agree that the only question in the case is whether under the circumstances existing at the time,...
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