Philadelphia v. Jewell

• Decision Date: 26 May 1890
• Docket Number: 219
• Citation: 135 Pa. 329,20 A. 281
• Parties: PHILADELPHIA, TO USE, v. WILSON JEWELL
• Court: Pennsylvania Supreme Court

20 A. 281

135 Pa. 329

PHILADELPHIA, TO USE, v. WILSON JEWELL

No. 219

Supreme Court of Pennsylvania

May 26, 1890

Argued April 9, 1890

APPEAL BY USE PLAINTIFF FROM THE COURT OF COMMON PLEAS NO. 2 OF PHILADELPHIA COUNTY.

No. 219 January Term 1890, Sup. Ct.; court below, No. 18 March Term 1880, M.L.D., C.P. No. 2.

To the number and term in the court below, the city of Philadelphia to the use of Jacob M. Peters, brought scire facias against the "estate of Wilson Jewell, deceased," and others, upon a municipal claim for paving a part of Penn street. On May 23, 1889, the plaintiff and defendants agreed upon the following facts as a case stated:

By an ordinance of the city of Philadelphia, duly approved on June 12, 1868, the price of rubble paving in said city was fixed at $1.50 per square yard.

In and by a certain resolution of said councils, duly approved on February 24, 1871, it was provided as follows:

"That the department of highways be and is hereby authorized and directed to enter into a contract with a competent paver or pavers who shall be selected by a majority of the owners of property fronting on Penn street, from Sellers street to Unity street, the cost of paving the intersection not to exceed the sum of $135, for the paving thereof with rubble paving: the conditions of said contract shall be that the contractor or contractors shall collect the cost of said paving from the property owners respectively fronting thereon, and shall enter into an obligation with the city to keep the said paving in good repair for three years after the paving is finished."

In and by a certain other ordinance of said city councils, duly approved on May 11, 1872, it was provided as follows:

"That from and after the passage of this ordinance, all contracts for grading, paving or repairing of the streets, avenues, or roads in said city, entered into by the department of highways with any person or persons, shall contain the following covenant and condition, viz.: That the said work shall be fully completed to the satisfaction of the department of highways, on or before the expiration of two years from the date thereof; provided, that the water pipes are laid on such streets, avenues or roads; otherwise, the limitation to continue from the date of the completion of the laying of water pipes, and in default thereof, this contract shall be considered null and void."

In and by a certain other resolution of said councils, duly approved on June 13, 1873, the chief commissioner of highways of said city was duly authorized, instructed and directed to enter into a contract on behalf of said city with Jacob M. Peters for the paving of Penn street, from Unity street to Sellers street, in accordance with the resolution approved February 24, 1871, entitled a "Resolution to authorize the paving of Penn street and other streets with rubble pavement."

Under and in pursuance of said resolution, said chief commissioner of highways did, on July 2, 1873, on behalf of said city duly enter into a written contract with said Jacob M. Peters for the paving of said Penn street, from Unity to Sellers street, with rubble paving, wherein it was stipulated and agreed on behalf of said city, that it should pay said Peters for said paving, the sum of $1.50 per square yard for each and every square yard thereof in "assessment bills," made out by the proper officers, at the rate of $1.50 for each and every square yard of said pavement laid in pursuance of said contract. And said Jacob M. Peters therein agreed on his behalf to do said paving for the price of $1.50 per square yard, and to accept and take from said city, in payment therefor, assessment bills made out as aforesaid, at the rate of $1.50 for each and every square yard thereof prout contract, which is made a part of this case stated as fully as if entirely and particularly set forth herein. In the latter part of the year 1873, the said Jacob M. Peters, under said contract, paved a part of said Penn street, between the points aforesaid, with rubble pavement, and received from said city in payment therefor assessment bills, made out as aforesaid, at the rate of $1.50 per square yard for each and every square yard thereof then done by him.

In and by a certain other ordinance of said councils, duly approved April 24, 1877, it was provided: "That from and after the passage of this ordinance the price or cost for the new paving of the cartways of streets to be charged to the owners of property fronting on such streets, and to the city for intersections, shall not exceed the following, viz.: for paving with cobble stone $1 per square yard; for paving with rubble stone, $1.10 per yard; but, should the bills for such paving remain unsettled and unpaid sixty days after they are legally rendered, there shall be added to the above prices the sum of ten per cent for each square yard paved."

In and by a certain other ordinance of said councils, duly approved January 26, 1878, entitled "An ordinance to put in force and practice a certain ordinance voiding contracts," it was provided: "That all contracts for grading or paving of streets made for two years or more, and the work remaining uncompleted on January 1, 1878, the said contracts are hereby declared void and of no effect, in accordance with an ordinance entitled 'An Ordinance relative to the completion of contracts for the grading, paving or repairing of streets,' approved May 11, 1872; and that the chief commissioner of highways be and is hereby instructed to notify the contractors in interest not to continue the work on said contracts, and that the city controller be instructed to countersign no warrants for work done under such contracts after the above mentioned date."

No notice to the contractor in interest was given, as required by the last above mentioned ordinance.

In and by a certain other ordinance of said councils, duly approved December 3, 1878, it was provided: "That an ordinance entitled an ordinance in relation to contracts for street paving, approved December 31, 1862, be and the same is hereby repealed; and all contracts for paving streets entered into by the department of highways, under which work has been done under resolution or ordinance authorizing the same, be and are hereby ratified and approved."

In the latter part of September, 1879, the said Jacob M. Peters, under the above mentioned contract, did the work and paving particularly set forth in the claim filed in this case, and which claim is made a part of the case stated, and received from said city in payment therefor an assessment bill against the property described in said claim, made out by the proper officers, at the rate of $1.50 for each and every square yard of said paving.

No part of said claim or assessment bill has ever been paid, and the whole thereof still remains unpaid. Said claim was duly filed March 2, 1880. The water pipe was laid in Penn street, between Unity and Sellers streets, in the year 1871.

If upon these facts above stated, the court should be of the opinion that said Jacob M. Peters is entitled and has a legal right to demand and claim for said paving at the rate $1.50 per square yard, then judgment to be entered for the plaintiff for the sum of $32.59, with interest from September 23, 1879; but if the court should be of opinion that the said Jacob M. Peters has a legal right to but $1.10 per square yard, for said paving, then judgment to be entered for the plaintiff, for the sum of $23.98, with interest from September 23, 1879; but if the court should be of opinion that the said Jacob M. Peters, has no legal claim and is entitled to nothing, then judgment to be entered for the defendants, either party to have the right to a writ of error to the Supreme Court.

After argument, the court in banc, on December 28, 1889, without opinion filed, entered judgment for the plaintiff upon the case stated for $38.79, the amount for which it was rendered being calculated upon the basis of $1.10 per square yard for the work done. Thereupon the use plaintiff took this appeal, specifying that the court erred:

1. In not entering judgment for the plaintiff, on the case stated, for $32.59, with interest from September 23, 1879.

Judgment affirmed.

Mr. Byron Woodward (with him Mr. William Hopple, Jr.), for the appellant:

1. The court had no right to disregard the solemn contract and say that Peters should take less for his work than he had agreed to do it for, and less than the amount which the city, in recognition of its obligation, had paid him in assessment bills. The only contract was a clear and plain one for $1.50 per square yard. While courts may construe contracts when their meaning is obscure, they cannot make new contracts for the parties, and there is no room for construction when the language used is clear and unambiguous: Shafer v. Senseman, 125 Pa. 310. This is the law between the parties to the contract, and in such a case as this the property owner has no superior rights; on the contrary, he has nothing to do with the contract made by the city, if authority for making it existed: Reilly v. Philadelphia, 60 Pa. 467; Hutchinson v. Pittsburgh, 72 Pa. 320; Philadelphia v. Brooke, 81 Pa. 23; Fell v. Philadelphia, 81 Pa. 58; Philadelphia v. Hays, 93 Pa. 72; Philadelphia v. Wistar, 35 Pa. 427. The defendants, of course, had a right to know what the price fixed in the contract was, and to see that the assessment bills conformed thereto, but that was the extent of their rights.

2. It is contended that Peters is bound by the ordinance of 1877 fixing the price for new rubble pavement at not exceeding $1.10 per square yard. But, in the first place, there is nothing in the ordinance indicating an intention to change the terms of existing contracts,...