Reilly v. Rodef Sholem Congregation
| Decision Date | 05 January 1914 |
| Docket Number | 119 |
| Parties | Reilly, Appellant, v. Rodef Sholem Congregation |
| Court | Pennsylvania Supreme Court |
Argued November 4, 1913
Appeal, No. 119, Oct. T., 1913, by plaintiff, from judgment of C.P. Allegheny Co., Dec. T., 1908, No. 1018, for plaintiff in case of Thomas Reilly v. Rodef Sholem Congregation. Reversed.
Assumpsit on building contract. Before EVANS, J.
The opinion of the Supreme Court states the case.
Verdict for plaintiff for $5,161.71, and judgment thereon. Plaintiff appealed.
Errors assigned were in admitting certain evidence offered by the defendant and in refusing to admit certain evidence offered by the plaintiff, referred to in the opinion of the Supreme Court.
John S Ferguson, with him A. V. D. Watterson, for appellant.
William B. Rodgers, with him Joseph Stadtfeld, for appellee.
Before FELL, C.J., BROWN, MESTREZAT, POTTER and STEWART, JJ.
In this action of assumpsit the plaintiff sought to recover the balance due him from the defendant upon a contract for the erection of a synagogue. In his statement of claim the plaintiff averred performance of the work in accordance with the contract, by reason of which he became entitled to payment of the contract price of $184,636.60, and the further sum of $8,009.30 for extra work, making a total of $192,645.90; on account of which he had been paid $140,304.98 in cash and by certain allowances, leaving a balance as claimed by plaintiff of $52,340.92. After suit was brought defendant paid plaintiff additional sums aggregating $32,874.61. This reduced the amount claimed to $19,466.31. Some discrepancy is apparent, however, as the trial judge stated in his charge to the jury that the balance claimed was $17,599.85. Against this balance defendant claimed to be entitled to the sum of $12,000 as liquidated damages for delay in the completion of the building. Under the contract plaintiff was required to complete the auditorium by September 1, 1906, and the whole of the work by November 1 1906, and it was stipulated that for every day's delay in the completion of the work beyond these dates, plaintiff should pay the sum of $100 to defendant as liquidated damages. The work was to be done to the satisfaction of the architects, and this clause appears in the contract, "To prevent all disputes and litigation the architects shall in all cases determine the amount or the quality of the several kinds of work which are to be paid for under this contract, and they shall determine all questions relative to said work and the construction thereof; and they shall in all cases decide every question which may arise relative to the execution of this contract on the part of the contractor, and their estimate and decision shall be final, conclusive and binding, without exception or appeal, and such estimate and decision, in case any question shall arise, shall be a condition precedent to the right of the contractor to receive any money under this agreement." The work was not completed until September 1, 1907, and the architects decided that of this delay one hundred and twenty days were properly chargeable to the plaintiff under the terms of the contract, at one hundred dollars a day, aggregating the sum of $12,000. Upon the trial the court below admitted the award of the architects in evidence and excluded an offer by plaintiff to show that the delay in completing the building was chargeable chiefly to the delay of the architects in furnishing certain necessary detailed drawings. The trial judge instructed the jury that credit must be allowed to the defendant for the $12,000 damages awarded by the architects, and limited the verdict for the plaintiff to an amount not larger than the difference between that sum and the balance claimed. Under these instructions the jury found a verdict in favor of plaintiff for $5,161.71 on which judgment was subsequently entered. Plaintiff has appealed and his counsel have filed two assignments of error. The first is to the admission in evidence of the award of the architects, and the other is to the exclusion of testimony tending to show that the delay in the completion of the building was due chiefly to the failure of the architects to furnish detailed drawings necessary to the performance of the work. The language of the contract with reference to the power of the architects is very broad. They were authorized to determine all questions in relation to the work and the construction of the contract and to decide every question which might arise relative to its execution. Under our decisions, however, as will appear further on, the authority of the architects is not to be extended so as to permit them to pass upon the question of whether they were themselves at fault. The general principle, that an agreement to arbitrate will be sustained, is clearly established. In Conneaut Lake Agricultural Association v. Surety Company, 225 Pa. 592, we said (p. 596):
"It is firmly settled by the law of Pennsylvania that agreements to refer disputes to arbitration, will be sustained and upheld, where the power to pass upon the subject-matter in dispute, is clearly given to...
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