Koch v. Kuhns

• Decision Date: 13 December 1897
• Docket Number: 18-1897
• Citation: 6 Pa.Super. 186
• Parties: Josiah S. Koch v. Henry Kuhns, Appellant
• Court: Pennsylvania Superior Court

6 Pa.Super. 186

Josiah S. Koch v. Henry Kuhns, Appellant

No. 18-1897

Superior Court of Pennsylvania

December 13, 1897

Argued November 9, 1897 [Syllabus Matter] [Syllabus Matter]

Appeal by defendant, from judgment of C. P. Berks Co.-1894, No. 72 on verdict for plaintiff.

Assumpsit to recover over payment to the stone mason under a building contract. Before Endlich, J.

It appears from the record and evidence that this is an action brought by the contractor to recover from the defendant, a stone mason and subcontractor, an overpayment for stone masonry required in the erection of the said building. The contract provided for the payment of a certain sum per perch for each and every perch so laid, as measured by the architect, and also provided that all work be measured according to the rules of mason's workmanship. The question turned on the correctness of the architect's measurements.

During the course of the trial the following offers of testimony were made, with objections by plaintiff. [Charles F. Smith sworn: Mr. Stevens: Counsel for defendant further offers to prove by the witness on the stand that he made actual measurements of the mason work done by Mr. Henry Kuhns at the Memorial Church and compared them with the measurements made by the architect Lonsdale and that he finds that the architect failed to apply the mason's rule of measurement and in many instances calculated the actual cubic contents of the mason work done, whereby the claim of the plaintiff would be decreased, and with the bills for extras admitted would be entirely wiped out; these measurements were made the same time, November 16, 1895.]

[Mr. Stevens: Counsel for the defendant renew the same offer and add to it: the testimony showing that there was no change in the character of the work, and the witness was able accurately to measure the mason work as done by Kuhns; the defendant offers to show by the witness on the stand that he made actual measurements on the ground of the mason work that was exposed to view and took the measurements and calculations made by the architect of those parts which were concealed, and he finds by comparison that the architect failed to apply the mason's rule of measurement, but took the cubic contents of the walls, whereby the defendant failed to receive credit for a large amount of work done, equal to the amount of plaintiff's claim.]

[Adam H. Leader sworn: By Mr. Stevens:

"Q. You are a civil engineer?

A. Yes, sir.

Q. How many years' experience?

A. About 10.

Q. You are accustomed to measuring buildings?

A. Yes, sir.

Q. You made a measurement of the Memorial Church of the stone work done by Henry Kuhns.

A. Yes, sir.

Q. From the work actually done and by an actual measurement of the masonry and examination of the plans?

A. Measured the masonry by lengths of walls, and assumed the heights taken by the architect, which we couldn't get, and make up our calculation

."Mr. Stevens: We offer to show by the witness that from an actual measurement of the mason work in the Methodist Church, made on November 16, 1895, by the rule of mason's measurement, he found 1232 perches in the foundations, 1580 1/2 perches in the superstructure, not including the cloister and the tower, and 590 perches in the cloister and tower.]

The court, Endlich, J., charged in part as follows:

[Now, gentlemen, you understand in building contracts of this kind where the parties agree to refer the matter of measurements and computations to a certain person, that person's measurements and computations are binding upon both parties, except where the measurements themselves indicate on the face of them palpable miscalculations -- faulty arithmetic. So you start out with this proposition in the present case, that in so far as the rights of the parties are to be measured by their agreement (and they are to be measured by the agreement unless you find for the defendant upon one of the questions which has been raised in this case, and that I will discuss to you later) the measurements of the work done as made by the architect are binding upon both parties and so are his calculations, except in those instances where a palpable mistake has been shown by the evidence. There have been certain mistakes shown by the evidence, which, as I understand, are conceded by the plaintiff, and those mistakes in the claim which he now makes against the defendant have been corrected.]

Verdict and judgment for plaintiff for $ 854.39. Defendant appealed.

Errors assigned, inter alia, were, To portion of the judge's charge, reciting same. Rejection of certain offers of evidence made by the defendant, reciting same.

Wm. Kerper Stevens, of Stevens & Stevens, for appellant. -- The contract between the parties not having made the measurements of the architect conclusive, the defendant has a right to prove that the measurements were inaccurate: Trust Co. v. Railway Co., 70 F. 282; Railroad Co. v. Wilcox, 48 Pa. 161.

The contract between the parties required all work to be measured according to the rule of mason's measurement, and the architect had not the power to adopt a different rule: McCollough v. Ashbridge, 155 Pa. 166.

The question raised by these assignments of error has been very recently considered by this court in the case of Fisher v. South Williamsport, 1 Pa.Super. 386; Drhew v. Altoona, 121 Pa. 401; Railroad Co. v. Dilley, 25 Am. & Eng. R. R. Cases, 265; Morse on Arbitration, 38, cited and approved in Railroad Company v. Mills, 22 S.E. 556.

Philip S. Zieber, with him Baer & Snyder, for appellee. -- The provision in the contract that the work was to be done to the satisfaction of the architect, and payments to be made for it as measured by said architect at such times and in such amounts as said architect shall certify to be rightly due, rendered the architect's measurements conclusive upon the parties: Kennedy v. Poor, 151 Pa. 472.

The agreement of Mr. Koch, therefore, was to pay only for the work done as measured by the architect. The case differs in that respect from Railroad Co. v. Wilcox, 48 Pa. 161, and Trust Company v. Railway Company, 70 F. 282, cited in appellant's argument: Kihlberg v. U.S. 97 U.S. 400.

Our contention is also supported by the case of McCauley v. Keller, 130 Pa. 53.

Before Rice, P. J., Wickham, Beaver, Orlady, Smith and Porter, JJ.

OPINION

PORTER, J.

The contract between the parties in this cause was in writing and required the defendant " to do all the stone masonry required for the new Methodist Episcopal Church and Sunday School buildings, to be erected on North Fifth street" in the city of Reading. After setting forth the rate per perch, the contract provides, " all the work to be measured according to rule of mason's workmanship.

" All to be done in the best, most substantial and workmanlike manner to the satisfaction of Thomas P. Lonsdale, the supervising architect, as described and set forth in the plans and specifications as furnished by said architect." The plaintiff was required by the contract to pay the defendant " the...