McManus v. City of Philadelphia

• Decision Date: 24 February 1902
• Docket Number: 187
• Citation: 51 A. 320,201 Pa. 619
• Parties: McManus, Appellant, v. Philadelphia
• Court: Pennsylvania Supreme Court

51 A. 320

201 Pa. 619

McManus, Appellant, v. Philadelphia

No. 187

Supreme Court of Pennsylvania

February 24, 1902

Argued January 20, 1902

Appeal, No. 187, Jan. T., 1901, by plaintiff, from order of C.P. No. 1, Phila. Co., Sept. T., 1898, No. 18, sustaining exceptions to report of referee in case of Michael McManus v City of Philadelphia. Affirmed.

Exceptions to report of George W. Harkins, Esq., referee.

The facts are stated in the opinion of the Supreme Court.

Errors assigned were in sustaining exceptions to report of referee.

The decree of the court below overruling exception to the award to plaintiff, $569.92 is affirmed and the decree sustaining exceptions of city to balance of award is affirmed.

E. H Hanson, with him F. B. Bracken and John J. Clarke, for appellant, cited: Cunningham v. Fourth Baptist Church, 159 Pa. 620.

Chester N. Farr, Jr., assistant city solicitor, with him John L. Kinsey, city solicitor, for appellee, cited: Malone v. Phila., 147 Pa. 416; Addis v. Pittsburg, 85 Pa. 379; Hepburn v. Phila., 149 Pa. 335; Filbert v. Phila., 181 Pa. 530.

Before McCOLLUM, C.J., MITCHELL, DEAN, FELL, BROWN, MESTREZAT and POTTER, JJ.

OPINION

MR. JUSTICE DEAN:

McManus, the appellant, on April 17, 1894, made a written contract with the city to build a police and fire patrol station on Fairmount avenue for the round price of $27,980. It was to be built according to plans and specifications which were appended to and made part of the contract. Then appears this clause in the contract:

"It is further understood and agreed that this contract is entered into under and subject to the provisions of the act of assembly . . . entitled 'An act to provide for the better government of cities of the first class in this commonwealth approved the first day of June, 1885.'"

There was also this stipulation:

"It is further distinctly understood and agreed, that the total amount to be expended for the work to be done under this contract, shall in no event exceed the sum of twenty-seven thousand nine hundred and eighty dollars."

It was further agreed that all the work done and materials furnished should be subject to the inspection and approval of the director of the department of public works for the city.

During the progress of the work, it is alleged, by McManus, that it was discovered, the specifications in some particulars violated the city building regulations, and these were changed at considerable expense to him, under the directions of the city architect so as to conform to them. Another of the specifications called for a kind of building stone not obtainable; so another kind at an additional expense, under the instructions of the same officer was purchased; that other modifications more costly to the contractor were made under the directions of the same city officer.

The city paid to the contractor the entire contract price, less the sum of $416, which it claimed the right to deduct because an item of tile work, estimated at $1,800, in the contract, had only cost the contractor $1,384. The changes, substitutions and additions to the specifications made by the contractor amounted to $2,811, for which he demanded payment; the city denied, (1) that such changes had been authorized by its subordinate officers, the architect and his assistants; (2) it denied any authority on the part of these officers to permit such changes, even if they had been permitted by them. Thereupon McManus brought this suit. The issue was referred to George W. Harkins, Esq., to find the facts and decide the law, under the act of May 14, 1874. After a full hearing of the testimony, he awarded to plaintiff the sum of $2,972, very nearly including balance due on contract, the amount of his claim. The city filed exceptions to the referee's report in the court below; all of them were sustained, except the one to the allowance of $416, the balance of the contract price, and judgment was entered for this amount with interest, making $569.92. From the decree of the court sustaining the exceptions to all charges, for additions and alterations, McManus brings this appeal, alleging the decree to be erroneous.

The gist of plaintiff's case is very clearly set forth by the referee in his report. The evidence was contradictory, but from the weight of it, the referee finds that all the changes and additions made by the contractor were made by the directions of the city architect and his assistants and that they were properly made. Therefore, we assume the facts to be with the appellant. The question then, that confronts us is under the contract and the law, is the city under a legal obligation to pay for the changes? We start with the express stipulation in the contract, "The work to be done under this contract shall in no event exceed the sum of twenty-seven thousand nine hundred and eighty dollars." This being the round sum at which McManus agreed to erect the building. But suppose the city, after the contract has been awarded and the work has been commenced desires to make alterations and changes, either in plans or materials which will enhance the cost, how shall that end be reached? There is no reason why such alterations and changes should not be made, if the city deemed them necessary or desirable. At...