Mitchell v. Dougherty
| Citation | 86 F. 859 |
| Parties | MITCHELL v. DOUGHERTY. |
| Decision Date | 27 December 1897 |
| Court | U.S. District Court — Eastern District of Pennsylvania |
This suit was brought by the plaintiff to recover from the defendant the value of certain work done by him in part performance of a contract entered into between the plaintiff and defendant for the roofing and tiling of a certain building, and also to recover the profits that the plaintiff claimed he would have made had the work been completed by him. The allegation of the plaintiff was that he was hindered and prevented from completing the contract in its entirely by the defendant, and was thereby authorized in abandoning the work undertaken by him. The defendant had previously entered into an agreement with Archbishop P. J. Ryan for the erection of the building, upon which the plaintiff subsequently covenanted to do the work of roofing and tiling. This contract between the defendant and Ryan, together with the specifications annexed thereto, were recited in the contract between the plaintiff and the defendant as being made part thereof. The specifications referred to provided that the tile which should be used upon the building should be what is known as 'Ludowici' tile.
The evidence which was produced on the part of the plaintiff tended to show that after he had commenced the work undertaken by this contract, and while actually prosecuting the same, he was ordered by the defendant to stop the work as the defendant contemplated using 'Celadon' tile instead of 'Ludowici' tile. In consequence of this order, the plaintiff stopped his work, and at the request of the defendant, furnished him with an estimate of the cost of completing the work with the 'Celadon' tile, which estimate was somewhat larger than the cost of completing the contract in accordance with the original provisions. The plaintiff was then instructed to make this change, with the assurance that the architects would consider the question of compensation thereafter, although the contract between the plaintiff and the defendant provided that no increased price could be obtained in consequence of any change in the specifications unless such price was agreed upon in advance in writing. After repeatedly notifying the defendant of his desire to prosecute the work undertaken by him, the defendant not only neglected to permit him so to do, but actually employed other parties to complete the work.
The defense relied upon was, substantially, that the plaintiff's work was imperfect in many respects and had been condemned as such by the architects who ordered so much of it as had been completed to be removed, in consequence of which the change in the tiling was suggested. The defendant further contended that the plaintiff neglected to correct the imperfect work, or to proceed with his undertaking in other respects.
The other facts necessary to an understanding of the case are set forth in the opinion.
Richard C. Dale, for plaintiff.
J. W Logue and Pierce Archer, for defendant.
BUTLER District Judge (after stating the facts above.)
On the trial the following point was presented by the defendant, and reserved:
A verdict having been rendered for the plaintiff the point must now be disposed of.
It is well settled that in contracts such as the one involved parties may bind themselves to submit to the...
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